^,. 
 

 (SnrnpU ICam ^rljnnl Htbtary 
 
* mmmm«mS,[.S.T''V "y ejectment an 
 
 3 1924 018 769 558 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018769558 
 
A TEEATISE 
 
 C 
 
 REMEDY BY EJECTMENT 
 
 LAW OF ADVERSE EIJOYMENT 
 
 UNITED STATES; 
 
 EMBRACIKQ IN FULL THE STATUTORY POLICY OF THE SEVERAL 
 
 STATES, IN RESPECT TO THE ACTION FOR THE 
 
 RECOVERY OF REAL PROPERTY. 
 
 By ransom n.^LER, 
 
 CODNSELOK AT LAW, 
 A»9' AUTHOR OF A TBSATI3E OK " IHFASOT AHD COTSBIUBI," 
 
 ALBANY: 
 
 WILLIAM GOULD & SON, 
 
 LiW BOOKSELLEHS AKD PCBLISnEKS. 
 

 Entered according to act of Congress In the year eighteen hundred and seventy, 
 
 By WILLIAM GOULD & SON, 
 
 In the Clerk's office of the District Court of the United States for the Northern District of 
 
 New York. 
 
 WEED, PABSONS AND COMPAITY, 
 
 PBX37T&B6 AND STEBEOTYPEBS, 
 
 AI.BANY, NEW YORK. 
 
No book upon the subjects which are specially treated in this 
 work has hitherto been produced by an American writer; and it 
 was thought that such a treatise would be acceptable to the legal 
 profession. The work of Mr. Adams on Ejectment is the only one 
 that has been much used, on the subject of real actions, within the 
 last thirty years; and that, although highly esteemed when first 
 published, sixty years ago, has now become, to a very considerable 
 degree, obsolete and, in many respects, inaccurate. A great change 
 has occurred in the statutes relating to actions for the recovery of 
 real property, both in the United States and in England, since the 
 appearance of the last American edition of Mr. Adams' work, inso- 
 much that it is now seldom consulted, and is of very little service as 
 a book of practice. The principles by which the action for the 
 recovery of real property is governed are peculiar, and oftentimes 
 technical and abstruse, and a reliable work upon the subject is 
 important to every practitioner. 
 
 In respect to the law of adverse enjoyment, I believe that no person 
 in this country has ever attempted to treat the subject as a specialty, 
 except Mr. Angell ; and his essay, entitled "An inquiry into the rule 
 of law which creates a right to an incorporeal hereditament by an 
 adverse enjoyment of twenty years," was published nearly fifty years 
 ago. It is obvious that a knowledge of the later and recent English 
 adjudications, and of the American authorities, upon the subject of 
 both actions for the recovery of real property and the law of adverse 
 enjoyment, is peculiarly important to practitioners in the courts of 
 this country. 
 
17 PREFACE. 
 
 It has been my aim, in the preparation of this work, to furnish to 
 -the profession, not only a convenient and reliable book of practice at 
 Nisi Prius, but an accurate and useful treatise on all the subjects 
 embraced in it. rrom the exhaustive manner in ivhich I have 
 endeavored to treat the statute of limitations, the law of tenures 
 and landlord and tenant, the law of evidence, and the subject of 
 wills, in addition to the more immediate subjects of the work, it is 
 believed that the book will especially commend itself to that numerous 
 and worthy class of lawyers who cannot afford the expense of the 
 elaborate and costly treatises in which each of these subjects is dis- 
 tinctively and exclusively considered. 
 
 In that part of the work which treats of the remedy by ejectment, • 
 it has been my purpose to investigate the principles upon which the 
 action is founded, and also to give a plain and practical statement of 
 the proceedings by which the action for the recovery of real property 
 is conducted in all of the United States. To this end, I have drawn, 
 so far as I thought useful, from the English edition of Mr. Adams' 
 work ; but, more generally, the matter of this treatise is made up 
 from the statutes of the several states and the decisions of the courts, 
 all of which have been carefully considered, and the doctrine of the 
 authorities faithfully extracted ; and, with a view to rendering the 
 decisions of the various courts the more readily intelligible, the sub- 
 stance of the statutes has been given in connection with the judicial 
 authorities. 
 
 The subjects of the work are all treated in the order which it was 
 thought would be the most convenient ; and I must confess to a hope 
 that my effort may prove advantageous and satisfactory to the pro- 
 fession. I have endeavored to examine carefully the statutes of the 
 several states, and all the judicial authorities upon the subjects dis- 
 cussed, and bring the matter down to the present date. Of course, I 
 have received essential aid from the excellent digests within my reach ; 
 but, as digests and head-notes of reports are not always quite accurate, 
 I have sought to examine the cases themselves, and never adopt the 
 language of the digests or head-notes, unless they were found to 
 express the doctrine of the courts. The volume has attained to a 
 
PSBFACE. V 
 
 greater number of /pages than I anticipated at first ; but, as it was 
 desirable that it, be complete, I have not felt at liberty to omit any 
 part Avliich has been inserted. I hope and trust that the work may 
 be useful to the student in his studies, and also be the means of 
 abridging the time and labors of the practitioner in the arduous busi- 
 ness of his profession. I remember, with gratitude, the kind indul- 
 gence with which my previous efforts have been received, and still 
 entertain an abiding confidence in the liberality and magnanimity 
 of a noble and appreciative fraternity, to whom the merits of the 
 present work are committed. 
 
 April, 1S70. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 
 OF THE ACTION OF EJECTMENT, 
 
 CHAPTER I. 
 
 EEj»L AOTIOKS usually called actions of BJEOTMEOT — THE ORIGIN, BISTORT, 
 NATURE AKD OBJECT OF THE ACTION OP EJECTMENT, 33 
 
 CHAPTER n. 
 
 FOB WHAT THE ACTION OF EJECTMENT WILL LIB, 37 
 
 CHAPTER III. 
 
 FOR WHAT THE ACTION OP EJECTMENT WILL LIE BY THE STATUTES OP THE SEVERAL 
 STATES, 44 
 
 CHAPTER IT. 
 
 OF THE TITLE WHICH WILL SUPPORT THE ACTION OF EJECTMENT 70 
 
 CHAPTER V. 
 
 THE STATUTE OF LIMITATIONS AS A BAR TO THE ACTION OP EJECTMENT — THE LAWS 
 
 OF GREAT BRITAIN AND THE PROVINCE OF ONTARIO, NEW YORK, AND NEW JERSEY, 87 
 
 CHAPTER VI. 
 
 THE STATUTE OP LIMITATIONS AS A BAR TO THE ACTION OF EJECTMENT — LAWS OP 
 THE NEW ENGLAND STATES, 110 
 
 CHAPTER Til. 
 
 THE STATUTE OF LIMITATIONS A3 A BAR TO THE ACTION OF EJECTMENT — THE LAWS 
 OF THE MIDDLE AND WESTERN STATES, EXCEPT THOSE OP NEW YORK AND NEW 
 JERSEY, GIVEN IN A PREVIOUS CHAPTER, 122 
 
 CHAPTER Tin. 
 
 THE STATUTE OP LIMITATIONS AS A BAR TO THE ACTION OF EJECTMENT — THE LAWS 
 OP THE SOUTHERN AND SOUTH-WESTERN STATES, 145 
 
rui TABLE OF COXTTIS'TS. 
 
 CHAPTER IX. 
 
 Page. 
 
 THE N-ATTJEE OF THE TITLE OF THE CLAIMANT IN AN ACTION OF EJECTMENT — THE 
 RULE IN ORDINARY CASES, 165 
 
 CIIAPrER X. 
 
 THE NATURE OF THE TITLE OF THE CLAIMANT IN AN ACTION OP EJECTMENT — THE 
 RULE IN PARTICULAR CASES, 183 
 
 CHAPTER XI. 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT — HOW TENANCIES 
 
 MAY BE DETERMINED — THE NOTICE TO QUIT, . 
 
 200 
 
 CHAPTER XII. 
 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT — THE PERSONS DT 
 WHOM AND TO WHOM THE NOTICE TO QUIT IS TO BE GIVEN — RULES RESPECTING 
 NOTICES TO QUIT, .' • 226 
 
 CHAPTER XIII. 
 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT — TERMINATION OF 
 A TENANOYBY THE NON-PAYMENT OF BENT — OP THE WAIVER OP THE PORFEITUEE 
 OF THE ESTATE FOR NON-PAYMENT OP RENT, 253 
 
 CHAPTER XIV. 
 
 THE ACTION OP EJECTMENT AS BETWEEN LANDLORD AND TENANT — TERMINATION OF 
 A TENANCY BY THE NON-PEIiPOEMAKCE OF COVENANTS OH CONDITIONS, OTHER THAN 
 BY NON-PAYMENT OF KENT — OF THE BREACH OP THE COVENANTS IN SUCH CASES,. 277 
 
 CHAPTER XV. 
 
 THE ACTION OP EJECTMENT AS BETWEEN LANDLORD AND TENANT — WHO MAT TAKE 
 ADVANTAGE ^Y FORFEITURE OP THE BREACH OP COVENANTS OR CONDITIONS — OP 
 FORFEITURE GENERALLY — OF THE WAIVER OP THE FORFEITURE — OF THE SUR- 
 RENDER OP A TENANCY, 290 
 
 CHAPTER XVI. 
 
 THE ACTION OP EJECTMENT AS BETWEEN LANDLORD AND TENANT — THE STATUTORY 
 POLICY OF THE SEVERAL STATES IN RESPECT TO LANDLORD AND TENANT, AND THE 
 REMEDY BY EJECTMENT IN CASES OP TENANCIES — LAWS OP NEW YORK AND THE 
 NEW ENGLAND STATES 32-1 
 
 /» 
 
 CHAPTER XVII. 
 
 THE ACTION OP EJECTMENT AS BETWEEN LANDLORD AND TENANT — THE STATUTORY 
 POLICY OP THE SEVERAL STATES IN RESPECT TO LANDLORD AND TENANT, AND THE 
 REMEDY BY EJECTMENT IN CASES OF TENANCIES — LAWS OP THE MIDDLE AXO 
 WESTERN STATES, EXCEPTING NEW YORK, 839 
 
TABLE OF COXTSXTS. ix 
 
 chapteh xviir. 
 
 rage. 
 
 THE ACTION' OF EJEOTUEST AS BETWEEN LAXDLORD AND TENANT — THE STATUTORY 
 POLICY OF THE SETEBAL STATES IX RESPECT TO LANDLORD AND TENANT, AND THE 
 KEMEDY BY EJECTMBNr IX CASES OP TENANCIES — LAWS OF THE SOUTHEBX AND 
 SOUTH WESTERN STATES, 363 
 
 CHAPTER X!X. 
 
 THE ANCIENT PRACTICE IN THE ACTION OF EJECTMENT, AND THE CASES IN WHICH 
 IT IS STILL NECESSARY IN ENGLAND, 373 
 
 CHAPTER XX. 
 
 OF THE MODERN ACTION OP EJECTMENT — THE DECLARATION — OF ENTITLING THE 
 SAME — THE VENUE — THE DEMISE — DESCRIPTION OP THE PREMISES CLAIMED — 
 THE ENTRY — THE OUSTER — AMENDING THE DECLARATION, 370 
 
 CHAPTER XXr. 
 
 or THE NOTICE TO APPEAR IN THE MODERN ACTION OP EJECTMENT — THE REQUISITES 
 OP THE NOTICE — THE AMENDMENT THEREOF, 404 
 
 CHAPTER XXII. 
 
 OF THE SERVICE OF THE DECLARATION IN EJECTMENT — WHEN AND HOW THE 
 DECLARATION MUST BE SERVED — THE NOTICE OP THE SERVICE OP THE DBCLABA- 
 TION TO THE LANDLORD, 410 
 
 CHAPTER XXm 
 
 OP THE AFFIDAVIT OP SERVICE OP THE DECLARATION AXD NOTICE IN EJECTMENT — 
 THE JUDGMENT AGAINST THE CASUAL EJECTOR, BY DEFAULT — OPENING THE DE- 
 FAULT, AND ALLOWING THE TENANT TO DEFEND, 430 
 
 CHAPTER XXIT. 
 
 OP THE APPEARANCE OF THE DEFENDANT IN THE ACTION OF EJECTMENT — WHO 
 MAY DEPEND THE ACTION — THE CONSENT RULE, 441 
 
 CHAPTER XXV. 
 
 THE PLEA OF THE DEFENDANT IN THE ACTION OF EJECTMENT — THE ISSUE IN THE 
 ACTION — THE PLEA PUIS DARREIN CONTINUANCE, 463 
 
 CHAPTER XXVr. 
 
 THE EVIDENCE IN THE ACTION OP EJECTMENT — PROOF REQUIRED OF THE CLAIMANT — 
 THE POSSESSION OF THE DEFENDANT — PROOF OF OUSTER, WHEN REQUIRED — 
 WHAT IS SUFFICIENT EVIDENCE OF OUSTER, , 47I 
 
 CHAPTER XXVII. 
 
 THE EVIDENCE IN THE ACTION OF EJECTMENT — THE TITLE OP THE CLAIMANT^ HOW 
 PROVED WHEN NO PRIVITY EXISTS BE rWEEN THE PARTIES — THE CLAIM BY DESCENT 483 
 
 2 
 
Z TABLE OF CONTMNTS. 
 
 CHAPTER XXVIII. 
 
 Page. 
 
 THE EVIDENCE IS THE ACTION OF EJEOTMENT — THE PECOFS WHEN THE LESSEE 
 
 CLAIMS AS DEVISEE — GENERAL KULBS APPLICABLE TO WILLS — THE LAWS OP 
 
 ENGLAND AND NEW YORK, EESPEOIING WILLS, 485 
 
 CHAPTER XXIX. 
 
 THE EVIDENCE IN THE ACTION OF EJEOTMENT — THE PROOFS WHEN THE LESSOR 
 CLAIMS AS DEVISEE — THE LAWS OP THE SEVERAL STATES, EXCEPTISG NEW YORK, 
 IN RESPECT TO WILLS, 515 
 
 CHAPTER XXX. 
 
 THE EVIDENCE IN THE ACTION OP EJECTMENT — PROOFS WHEN THE PARTY CLAIMS 
 THE LAND UNDER AN EXECUTION — THE SAME WHEN THE CLAIM IS BY VIRTUE OP A 
 SALE FOR TAXES — THE PROOFS WHEN THE CLAIMANT IS GUARDIAN — THE PROOFS 
 WHEN THE CLAIMANTS ARE CHURCH OR PARISH OFFICERS — THE PROOFS WHEN THE 
 PARTY CLAIMS UNDER THE ORDINARY CONVEYANCE, 528 
 
 CHAPTER XXXI. 
 
 EVIDENCE IN THE ACTION OP EJECTMENT WHERE A PRIVITY EXISTS BETWEEN THE 
 PLAINTIFF AND THE DEFENDANT — PROOFS BY MORTGAGEES — PROOFS BY LAND- 
 LORDS AGAINST TENANTS — PROOFS m OTHER CASES WHERE A PRIVITY EXISTS 
 BETWEEN THE PARTIES, 543 
 
 CHAPTER XXXII. 
 
 EVIDENCE IN THE ACTION OF EJECTMENT ON THE PART OP THE DEPENDANT — CHAR- 
 ACTER OP THE EVIDENCE ADMISSIBLE ON THE PART OF BOTH PLAINTIFF AND DE- 
 PENDANT, i560 
 
 CHAPTER XXXIII. 
 
 OP THE TRIAL AND SUBSEQUENT PROCEEDINGS IN THE ACTION OP EJECTMENT — THE 
 JUDGMENT IN THE ACTION -— THE COSTS — THE EXECUTION — WRIT OP ERROR, .... 576 
 
 CHAPTER XXXIT. 
 
 OF BRINGING A SECOND EJECTMENT — STAYING PROCEEDINGS IN THE ACTION, 593 
 
 CHAPTER XXXV. 
 
 THE ACTION TO RECOVER REAL PROPERTY IN GREAT BRITAIN — THE PRACTICE UNDER 
 THE COMMON LAW PROCEDURE ACT OP THAT KINGDOM, 599 
 
 CHAPTER XXXVI. 
 
 THE ACTION TO RECOVER REAL PROPERTY IN THE SEVERAL STATES — THE PRACTICE 
 IN NEW YORK, gj]^ 
 
 CHAPTER XXXVII. 
 
 THE ACTION TO RECOVER HEAL PROPERTY IN THE SEVERAL STATES — THE PRACTICE IN 
 
 THE NEW ENGLAND STATES, g3g 
 
TASLE- OF CONTENTS. SX 
 
 CHAPTER XXXVIII. 
 
 Page, 
 
 THE ACTION TO REOOVEE REAL PKOPERTT IK THE SEVERAL STATES — THE PRAC- 
 TICE IN NEW JERSEY, PENNSYLVANIA AND DELAWARE, 658 
 
 CHAPTER XXXIX. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — 
 
 THE PRACTICE IN OHIO, MICHIGAN, INDIANA AND ILLINOIS, 683 
 
 CHAPTER XL. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THE 
 
 PRACTICE IN WISCONSIN, MINNESOTA AND IOWA, 713 
 
 CHAPTER XLI. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THL 
 
 PRACTICE IN MISSOURI, KANSAS, NEBRASKA AND NEVADA, 733 
 
 CHAPTER XLII. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THE 
 
 PRACTICE IN COLORADO, OREGON AND CALIFORNIA, 749 
 
 CHAPTER XLIII. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THE 
 
 PRACTICE IN MARYLAND, VIRGINIA AND WEST VIRGINIA, 769 
 
 CHAPTER XLIV. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THE 
 
 PRACTICE IN KENTOCKY, TENNESSEE, NORTH CAROLINA AND SOUTH CAROLINA, . . . 787 
 
 CHAPTER XLV. 
 
 THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES — THE 
 PRACTICE IN GEORGIA, FLORIDA, ALABAMA, MISSISSIPPI, LOUISIANA, ARKANSAS 
 AND TEXAS, 813 
 
 CHAPTER XLVI. 
 
 THE ACTION FOR MESNE PROFITS — THE PARTIES TO THE ACTION — THE PLEADINGS 
 
 IN THE ACTION — THE DAMAGES IN THE ACTION, 837 
 
XU TABIiS. OF CONTSNTS. 
 
 PART II. 
 OF ADVEESE ENJOYMEKT. 
 
 CHAPTER XLVII. 
 
 Page. 
 
 ADVERSE rOSSESSrOS INVOLVED IN THE STATUTES OF LIMITATIONS — IMPORTANCE OE 
 
 THE SUBJECT OP ADVERSE ENJOYMENT — HISTORY, OBJECT AND DOCTRINE OF 
 
 ADVERSE POSSESSION — RULES IN RESPECT TO ADVERSE ENJOYMENT APPLY TO 
 
 ACTIONS BOTH LEGAL AND EQUITABLE, 851 
 
 CHAPTER XLVIII. 
 
 ADVERSE POSSESSION MUST BE BASED UPON A COLOR AND CLAIM OF TITLE — TVHAT 
 
 IS COLOR OF TITLE — ILLUSTRATIONS OF THE DOCTRINE, S5D 
 
 CHAPTER XLIX 
 
 ADVERSE POSSESSION MUST BE HOSTILE IN ITS INCEPTION — IT MUST BE UNDER A 
 
 CLAIM OF TEE ENTIRE TITLE. AND EXCLUSIVE, 874 
 
 CHAPTER L. 
 
 POSSESSION TO BE ADVERSE MUST BE MARKED BY DEFINITE BOUNDARIES — WEES A 
 CONSTRUCTIVE POSSESSION MAY BE ADVERSE — REQUISITES OF A CONSTRUCTIVE 
 POSSESSION — RULE IN CASES OF MIXED POSSESSION 883 
 
 CHAPTER LI. 
 
 AN ADVERSE POSSESSION TO BE EFFECTUAL MUST BE CONTINUED FOR THE PERIOD 
 PRESCRIBED BY THE STATUTE OF LIMITATIONS — WHAT IS NECESSARY TO THE 
 CONTINUITY OF A POSSESSION 907 
 
 .CHAPTER LII. 
 
 TniAT PARTIES ARE PRECLUDED FROM SETTING UP AN ADVERSE POSSESSION TO 
 DEFEAT TSE TRUE TITLE TO LAND — EXCEPTIONS IN FAVOR OF PARTIES BY 
 REASON OF DISABILITIES — WHO MAY PLEAD TnE STATUTES OF LIMITATIONS AND 
 SET UP ADVERSE POSSESSION, 017 
 
 CHAPTER LIII. 
 
 or CONVEY ANOES OF LAND WHILE IN POSSESSION OF PARTIES HOLDING ADVERSELY 
 TO THE GRANTOR — THE EFFECT OF ADVERSE POSSESSION UPON SUCH GRANTS 
 
 CONCLUSION, 933 
 
INDEX TO CASES CITED. 
 
 Abbott V. Abbott 475 
 
 Abbott V. Chase 69, 730 
 
 Abbott V. Pratt 179 
 
 Abbott V. Skinner 58, 397 
 
 Abeel v. Harris 8.59 
 
 Abeel V. Radoliff, 2H 
 
 Abeel v. Van Gilder 570 
 
 Abel V. Cross 5S3 
 
 Abelv. Hutto, SOd, 810 
 
 Abraham v. wilkins, 527 
 
 Abram v. Will 121), 685, 870 
 
 Ackland V. Pring, 195 
 
 Aokland v. Sutley, 2S4 
 
 Adams v. Field, 516 
 
 Adams v. Goose, 398 
 
 Adams V. Guier, 71 
 
 Adams v. McDonald, 74, 817 
 
 Aflams V. Rivers, 891 
 
 Adams v. Boekwell 571 
 
 Adams v. Turner, 3S7 
 
 . Adderton v. Malcher, 802, 80'! 
 
 Adson V. Otwajr 377 
 
 Agricultural Bank of Massachusetts 
 
 V.Rice 75 
 
 Aikin v. Benedict 3S 
 
 Aliiin V. Gale, ,59 
 
 Aiuslie v. Mayor, etc., of New York,... 6.32 
 
 848, 819 
 
 Alburtson v. Redding, 463, 800 
 
 Alcock V. Wilshaw, 609 
 
 Alden v. Grove 76 
 
 Aldenburgh v. Peafer 246 
 
 Aldridge v. Kincaid 936 
 
 Alford V. Dewin, 748 
 
 Alford V. Vickery 22S, 236 
 
 AUard V. Lobau, 163 
 
 Allen V. Duulap 6*1 
 
 Allen V. Forraan, .375 
 
 Allen V. Holton, 916 
 
 Allen V. Hoyt, 914 
 
 Allen V. Rivington, 86 
 
 Allen V. Smith 65 
 
 Allen V. Stephens, 8.36 
 
 Allen v. Stranger, ,531 
 
 Alexander v. Gibson, 593 
 
 Alexander v. Herr, 8.')0 
 
 Alexander V. Pendleton 913 
 
 AUeyn v. Johnson 69 
 
 Alliev. Sehintz 721 
 
 Allyn v. Johnson, , 731 
 
 AIsop V. Miller, 185 
 
 Alsop V. Peck, 170 
 
 Alvord V. Collier, 533 
 
 American Seamen's Friend Society v. 
 
 Hopper, .50(5 
 
 Anandale, Marcliioness of, v. Harris,... .567 
 
 Anderson v. Prindle, 214 
 
 Anderson v. Turner, 803 
 
 Anderson, in Goods of, ,503 
 
 Andrew V. Motley 593 
 
 Andrews v. Fleming, 5t2 
 
 Andrews v. Mulford 910 
 
 Andrews V. Strain, " 632; 
 
 TAOE. 
 
 Anonymous, 85, 2.54, 261, 377, 401, 403, 40.5, 407 
 
 409, 414,-416, 417, 420, 424, 427, 429, 431, 432, 439 
 
 440, 443, 4.59, 468, 579, 588, 595, 696, 861, 930 
 
 Ansley V. Edwards, 587 
 
 Apalachicola v. Apalachicola Land 
 
 Company, 823 
 
 Applegate v. Doe, 70O 
 
 Appleton V. Strickland, 640 
 
 Armour V. White, 861 
 
 Ai-mstrong V. Hinds, 724 
 
 Armstrong v. .lackson, 386 
 
 Armstrong v. Kattenliorn, 3(7 
 
 Armstrong v. Pierson, 72, 731 
 
 Armstrong v. Risteau, 775, 85.5, 894, 999 
 
 Armstrong v. Tiramans, 463 
 
 Armstrong v. Williinson, 237 
 
 Arnsley v. Woodward, 282, 317 
 
 Arrington v. Liscom, 144 
 
 Ashley v. Ashley, 84, 874 
 
 Aslin V. Parkin, .. 392, 671, 840, 845, 846, 847 
 
 Atherton v. Johnson 72 
 
 Atkyns v. Horde 77, 853 
 
 Atkyns V. .Sawyer 547 
 
 Attorney-General v. Federal St. Meet- 
 ing House 119 
 
 Atwell V. McLure, _ 801 
 
 Aubry v. Fortescue, 928 
 
 Auburn Theo. Sem. v. Calhoun, .513 
 
 Aurick v. Oyler, 679 
 
 Austin V. Cambridgeport, 6.51 
 
 Austin ads. Jackson, .571. 
 
 Austin V. Stevens, 916 
 
 Awder V. Nokes, 183 
 
 Aylesbury, case of 346 
 
 A.yres v. Ayres, 402 
 
 Ayres v. Bushy 3J8 
 
 B. 
 
 Babcock v. Doe 699 
 
 Babcock v. Utter, 889 
 
 Bagwell v. Elliott, 523 
 
 Bailey v. Delaplane, 332 
 
 Bailey v. Doolittle, 874 
 
 Bailey V. Isley, 809, 893 
 
 Bailey v. Jones,,.;. 821 
 
 Bailey v. Marsh, 7t 
 
 Bailey v. Taylor, 541 
 
 Baker V. Barton, .•. 883 
 
 Baker V. Dunning, 591 
 
 Baker v. Gettings, 686 
 
 Baker v. McFerran, 530 
 
 Baker V. Mellish, 166, 199 
 
 Bakery. Whitney, 926 
 
 Balch V. Symes, ^ 495 
 
 Baldey V. Parish, 517 
 
 Baldwin v. Brown, 575 
 
 Ball V. Peck, 8,53 
 
 Ballanoe V. Forsyth ; sj? 
 
 Bailance v. Rankin [], 708 
 
 Ball.y V. Wells iji" 208 
 
 Baltimore city v. White 36.3 
 
 Bambler v. Tryon „ "" jgg 
 
XIV 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Banbury Peerage, case of, 562 
 
 Banks v. Bates 170 
 
 Banner V. Carr, 802 
 
 Banyer V. Empie, 613, 783 
 
 Barber V. Harris, 169 
 
 Barclay v. Howell's Lessee, 393, 473 
 
 Bard v. Nevlns, n 681 
 
 Barefoot V Fry 593 
 
 Barker V. Bell 547, 548 
 
 Barker V. Millard 930 
 
 Barker V. Salmon S74, 923 
 
 Barlow V. "Wainwright, 334 
 
 Barnes v. Bryant 331 
 
 Barnes V. McCubbin, 287, 763 
 
 Barney V. Cutler, 631, 944 
 
 Baron V. Abeel, 838, 844 
 
 Barr v. Gratz, 853, 882, 900 
 
 Barrett V. French 657 
 
 Barrow V. Roe 424 
 
 Barry V. Adams, 940, 946 
 
 Barstow V. Adams, 174 
 
 Barstow v. Newman 766 
 
 Barstow V. Sprague, 516 
 
 Bartlett V. Delprat, 492 
 
 Batcheller V. Pratt 53 
 
 Batenian v. Allen, 86 
 
 Bates V. Austin, 223 
 
 Bates V. Stearnes, 632 
 
 Batlierton v. Jackson, 66, 77 
 
 Battin V. Bigelow, 671 
 
 Battin, in goods of, 502 
 
 Battles V. Forbes 159 
 
 Bauman v. Grubbs, 127, 870 
 
 Bay V. Pope 766 
 
 Bayard V. Colefax 581 
 
 Baylis v. Le Gros, 609 
 
 Baylerv. Ne<r, 76 
 
 Baxter V. Baxter, 803 
 
 Baze V. Arper, 726 
 
 Beach V. Beach, 75, 192 
 
 Beach v. Walker, 533 
 
 Beall V. Bayard, 775 
 
 Beall V. Siverts 407 
 
 Bean v. Parker, 567 
 
 Beardsley V. Southmayd, 929 
 
 Beardsley v, Terry, 4:0 
 
 Beauchamp, ex parte 375 
 
 Beaudrip v. Buckley, 294 
 
 Becker v. Van Valkenburgh, 888, 930 
 
 Beckerly V. Dimery, 586 
 
 Bedford V. McElherron, 207; 218 
 
 Bedford V. Terhune, 320 
 
 Beebe v. Elliott, : ft33 
 
 Beekman V. Bigham, 538 
 
 Bellv. Langworth 894 
 
 Bell V. Morrison, 818 
 
 Bennett V. Bullock 839 
 
 Bennett V. Lamson, 544 
 
 Bensall V. McKay, 239 
 
 Benson v. Adams 933 
 
 Benson V. Matsdorf, 844 
 
 Benson V. Olive, 819 
 
 Benton V. Pond, 531 
 
 Benzv. Hines, 745 
 
 Bergnette v. Canfleld 72 
 
 Berrien v. Conover, 109 
 
 Berry V. Ransdale, 161 
 
 Betsey v. Turner 938 
 
 Bevill's case 857, 945 
 
 Bickford V. Parson, 2):9 
 
 Blckford V. Wade 928 
 
 Bigelow V. Jones, 481 
 
 Bigelow V. Wilson, 52, 211 
 
 Bindery. Benhow 810 
 
 Kinney's Lessee v. Chesapeake & Ohio 
 
 Canal Co 383 
 
 Birbeck v. Hughes, : 43t 
 
 Bird V. Lesbros, 72 
 
 Birge v. Nock 56, 656 
 
 Birney V. Blrney, i. 201 
 
 Bishop V. Howard, 218 
 
 Bishop V. Reed, 59 
 
 Blacky. Hepburn 41, 68 
 
 PAGE. 
 
 Black V. Tricker 677 
 
 Blackburn v. Crawford, 4S6, 487 
 
 Biackwell v. Patton, 402 
 
 Blake v. Dennett, 641 
 
 Blake v. Foster, 166 
 
 Blake v. Haven, 640 
 
 Blake v. Knight SOS 
 
 Blair v. Pathkiller, 7H3 
 
 Blair v. Street 2i) 
 
 Bieecker v. Smithy.. 314, 316 
 
 Blight's Lessee v. Rochester, 568 
 
 Bloom V. Burdlclc, 562 
 
 Blyth V. Dennett, 247, 248 
 
 Bodell V. Janney, 929 
 
 Bodley v. Coghill's Heirs, 893 
 
 Bogardus v. Trinity Church 481, 486, 868 
 
 872, 887 
 
 Boggs V. Black, 252 
 
 Boles V. Smith, 797 
 
 Boiling V. Alker 39 
 
 Boiling V. The Mayor etc. Petersburgh 64 
 
 Bolton V. Hamilton 478 
 
 Bone V. Walters, 836 
 
 Boner V. Juner, 387 
 
 Bookout V. Andrews, 881 
 
 Boone v. Childs, 883 
 
 Booth V. Small, 732, 908 
 
 Borretsv. Turner 861, 911. 
 
 Borst V. Griffln, 406 
 
 Boss V. Bradford^. 468 
 
 Boston & W. R. R. v. Sparhawk, 84, 948 
 
 Botts V. Shields, 161 
 
 Boughton V. Conway, 278 
 
 Bowee v. Brake 939 
 
 Bowen v. Bowen, 258 
 
 Bowles v. Sharp 5-^0 
 
 Bowman v. Foot 338 
 
 Bowman v. Wather 855 
 
 Box V. Lawrence 527 
 
 Boydv. Talbert, 347 
 
 Boylan V. Meeker, 72, 671 
 
 Brackettv. Norcixiss 112, 9;7 
 
 Brackett, Petition of, 874 
 
 Bradford V. Bradford, 591, 593, 657 
 
 Bradley v. Covin 214 
 
 Bradley v. Harper, 400, 403 
 
 Bradley v. Hasseldeu, 384 
 
 Bradstreet V. Clark .328 
 
 Bradstreet v. Huntington, 861, 863, SS2 
 
 Brady v. Hennion, 72 
 
 Brady v. Johnson, 385 
 
 Brady v. Regun 5)8 
 
 Brain tree v. Hingham, 567 
 
 Braltonv. Mitchell, 57 
 
 Brandt V. Livermore, 310,483, 562 
 
 Brandt v. Ogden, 875, 891, 918, 914 
 
 Brandter v. Marshall, 880 
 
 Bratton v. Mitchell, 573 
 
 Brawdy v. Brawdy, 59 
 
 Breeding v. Taylor, 412 441 
 
 Brewer v. Knapp 214 
 
 Brewer V.Stevens 54 
 
 Brewster V. Robinson, 547 
 
 Bride v. Watt, lao 
 
 Briggs V, Prosser, 379 
 
 Briggs V. Wells, 633 
 
 Brimmer V. Long Wharf, 900, 905 
 
 Brinley v. Whiting 938, 939, 946 
 
 Brogan V. Savage 795 
 
 Bronson v. Duhamel " 163 
 
 Brooking v. Desmond 74 gig 
 
 Brooks V. Bruyn 370 
 
 Brotherson v. Jones, ' " 924 
 
 Broughton V. Broughton, .810 811 
 
 Brown v. Alston, 155 
 
 Brown v. Bragg 237" 351 
 
 Brown v. Brown, 211) 
 
 Brown v. Cochnell 905 
 
 Brown V. Combs cgi 
 
 Brown v. Cousens, 934 
 
 Brown V. Crira roq 
 
 Brown v. Demont, ggr 
 
 Brown V. Eaton, 275 
 
INDEX TO CASES CITED. 
 
 XV 
 
 Brown V. Edson, "OS 
 
 Brown V. Galley ■•■ f 
 
 Brown V. Galloway, 4"^i »o» 
 
 Brown V. Keller, ^V' SSa 
 
 Brown V. King ^< o/O 
 
 Brown v. Lutterloli, ^^ 
 
 Brown v. Mace J^^ 
 
 Brown v. Paynter, »|» 
 
 Brown V. Porter, °% 
 
 Brown v. Richardson <^J^ 
 
 Brown V. Snell, °Af 
 
 Brown V. Stevens "a^ 
 
 Brown V. West 25? 
 
 Browning V. Estis »^& 
 
 Bruen v. Burrage, ■*W 
 
 Brunswick V. Dunning 639 
 
 Bruskctt V. Holsenback, 808 
 
 Bryan V. Atwater, 884 
 
 Bryan v. Averett, 820 
 
 Bryan V. White, 503 
 
 Bryce, in re, 501 
 
 Buckley v. Buckley, 430 
 
 Bucklin V. Ford, 928, 930 
 
 Buckminster v. Perry, 498 
 
 Bucknerv. CharaWiss, 817 
 
 Budd V. Bingham, , 843 
 
 Buffern v. Sutherland, 646 
 
 Butord V. Gaines, 448,450 463 
 
 Bullen V. Arnold, 917 
 
 Bull's Lessee v. Sherdlne, 596 
 
 Buncev. Wolcott, 932 
 
 Bunker v. Band, 719 
 
 Buutin V. Doe, 65, 699 
 
 Burden V. Thayer, 299 
 
 Burdick V. Heivley 138 
 
 Bnreniusv. Coffee, 72 
 
 Burlord V. McCue 681 
 
 Burgess v. Gates, 645 
 
 Burhans V. Burhans, 939 
 
 Burhansv. Van Zandt,... 869, 920,922, 924 
 
 Burkhalterv. Edwards, 862 
 
 Burnes v. Edwards, 526 
 
 Burnes V. McCubbin, 287, 363 
 
 Burnes v. Swift 905 
 
 Burr V. Spencer, 548, 656 
 
 Burr V. Woodrow, 790 
 
 Burrell v. Burrell, 898 
 
 Burton V.Austin 838 
 
 Bushv. Brandley, 932 
 
 Bush V.Sheldon 518 
 
 Bushy V. Dixon ' 484 
 
 Butlerv. Benson, 507, 509 
 
 Butler V. Phelps 479 
 
 Buynum v. Thompson 904 
 
 Byne v. Brewer 377 
 
 Byrane v. Rogers, 355 
 
 Byrum v. Carter 149 
 
 C. 
 
 Cadley V. Martinez, 237 
 
 Cahill v. Burn, 676 
 
 Calderv. Buell^ 40 
 
 Calderwood v. Brooks, 274, 767 
 
 Calhoun V. Cook, 900 
 
 Call V.Chase, 719 
 
 Callv. Neely, 903 
 
 Callis V. Kemp,.. 785 
 
 Calvert V. Horsfall, 846 
 
 Camden v. Batterbury, 221 
 
 Camden v. Haskill, 414, 582, 589, 783 
 
 Camp V. Cox 547 
 
 Camp V. Hornesby, 841 
 
 Camp V. Pulver, 315 
 
 Camp V. Smith, 532 
 
 Camp V. Wells, 674 
 
 Campbell v. Campbell, 114 
 
 Campbell V. Galbraith, 57, 677 
 
 Campbell v. Grantz's Lessee, 401 
 
 Campbell v. Harper 430, 433, 4S8 
 
 Campbell v. Logan, 507 
 
 Campbell v. Small, 766 
 
 Campbell V. Swan, 46 
 
 PAGE. 
 
 Candee v. Haywood, 40 
 
 Candler v. Lunsford, 917 
 
 Cannon v. Phillips, 796 
 
 Cannon V. White 830 
 
 Canty v. Piatt 808 
 
 Card V. Robertson 514 
 
 Cardell v. Haywood, 558 
 
 Carlisle, Mayor of, v. Blamlre, 567 
 
 Carmalt v. Piatt, 57 
 
 Carman v. Johnson, 738 
 
 Carondelet V. Timon 894 
 
 Carpenter V. Carpenter 55, 564 
 
 Carpenter V. Gardiner, ; 766 
 
 Carpenter v. Gregory, 148 
 
 Carpenter v. Oswego & Syracuse R. R. 
 Co 38 
 
 108, 
 
 Carpenter v. Schermerhorn,. 
 
 Carpenter v. Schmidt, 
 
 Carroll v. Ballance, 169, 
 
 Carroll v. Norwood's heirs, 63, 75, 167, 
 
 578, 
 
 Carson v. Boudinot, 58, 59 
 
 Carson v. Burnett 
 
 Carter v. Chapman, 
 
 Carter v. Cromwell, 
 
 Carter v. Parrot 453. 
 
 Carter v. Scaggs 
 
 Casey V. Gregory, 
 
 Casey v. Inloes, 
 
 Cashman v. Blanchard, 
 
 Cassell V. Saltenstall 
 
 Casson v. Dade, 
 
 Castle V. Burditt, 
 
 Castle V. Palmer, 
 
 Castleman v. Combs, .^ 
 
 Castro V, Richardson, 
 
 Cajbtro V. Wursbach, 
 
 Catlln V. Kidder 
 
 Oatlin V. Washburn, 61, 
 
 Cawdor v. Lewis, 
 
 ChaflTee v. Baptist Missionary Conven- 
 tion, 507, 
 
 Chalker v. Chalker, 
 
 Chamberlain v. Donohue, 
 
 Chamberlain v. Pratt 
 
 Chambers v. Farrys, 
 
 Chambers v. Hawley, 169, 
 
 Chamier v. Lingon, 
 
 Champlain '& St. L. R. R. Co. v. Val- 
 entine, 41, 
 
 Chandler v. Kent, 
 
 Chandler v. Spear, 
 
 Chapin v. First Uni versalist Society, . 
 
 Chapln V. Armstead, 40, 
 
 Chapin v. Sharp,, 
 
 Chase v. Dearborn 
 
 Chase v. Lincoln, 
 
 Chautauqua Co. Bank v. White 
 
 Chatfleld v. Stouters, 
 
 Chaworth v. Phillips, 
 
 Chee ver v. Pearson, 
 
 Cheney v Cheney, 
 
 Cheney v. Ringgold, 894, 
 
 Cherry's Lessee v. Robinson, 
 
 Chesroundv. Cunningham, 
 
 Chester v. Wortley, 
 
 Chicago B. & Q. R. R. Co. v. Knox 
 College 
 
 Chiokering v. Falles, 
 
 Child V. Cliappell 37, 41, 
 
 Childs V. Showers, 
 
 Chiles V. Calk 
 
 Chiles V. Cowley, 
 
 Cliiniquy V. Catholic Bishop, 
 
 Chinn v. Bland, 
 
 Chirac V. Reinecker 402, 842, 8-15, 
 
 Cholmondeley v. Clinton,.. 86, 853, 865, 
 
 Christy V. Alford, 
 
 Church V. Brown, 
 
 Church V. Burghardt 
 
 Cincinnati v. Evans 
 
 Cincinnati V. First Pres. Church, 
 
 Cincinnati v. White's I^essee 
 
 933 
 786 
 548 
 
 580 
 , 75 
 801 
 761 
 390 
 461~ 
 738 
 869 
 125 
 905 
 406 
 497 
 210 
 64 
 942 
 784 
 165 
 927 
 334 
 844 
 
 508 
 317 
 645 
 213 
 57 
 582 
 841 
 
 624 
 355 
 903 
 625 
 586 
 172 
 354 
 498 
 634 
 599 
 183 
 539 
 76 
 910 
 583 
 699 
 609 
 
 248 
 132 
 615 
 870 
 161 
 201 
 .707 
 
 846 
 86S 
 916 
 288 
 883 
 126 
 126 
 77 
 
XVI 
 
 lyDEX TO CASES CITED. _ 
 
 Oagett V. Kllbourne 44 
 
 C'lanriokard V. Sidney, 279 
 
 Clapp V. Bromagham,.. 42, 200, 879, 8ij2, 887 
 
 Clarn; V. Chase 159, 91S 
 
 Clark V. Courtney 853, 8B1 
 
 Clarke v. Oummings, ;...• 29B, ill? 
 
 Clark V. Diggs, 73 
 
 Clark V. Everly, 3*5 
 
 Clark V. Hughes 881, 884, Mb 
 
 Clark V. Jones, 3W 
 
 Clark V. McLean, 913 
 
 Clark V. McOlure 85, 147 
 
 Clark V. Miller, <J20 
 
 Clark V. Owen, 4b8 
 
 Clark V. Power, 393 
 
 Clark V. Pratt, o'l 
 
 Clarlc V. Vaughan, 478 
 
 Clason V. Rankin, 200, 477 
 
 Classen V. Carrol, 370 
 
 Clawson V. Doe i'97 
 
 Claxvene v. Leech, 578 
 
 Clay V. White 580, 785 
 
 Clay V. Wyatt 942 
 
 Clayton V. Blakeley, 213, 219, 3o7 
 
 Clav'ton V. Wardell, 5lil 
 
 Clegg V. Fields 808 
 
 Clerverly v. Whitney, 93i) 
 
 Clopton V. Pridgeon, 871 
 
 Cloud V. Webb, 927 
 
 Cloyes V. Beebe, S3i 
 
 Clymer's Lessees v. Dawkins 927 
 
 Cobb V. Arnold, 3i5 
 
 Cochran v. Webb, 619 
 
 Cochran v. Whitesides 731 
 
 Cocks V. Dawson, 203 
 
 Codman v. Winslow, 117, 90J 
 
 Coe V. Elsam, 293 
 
 Coe V. Wickhani 533 
 
 Coffin V. Cotnn 511 
 
 Cofleld V. Furry, 131 
 
 CJlburn v. Hollis, 893 
 
 Cjle V. Green 291 
 
 Cjle V. Irvine, 2J2 
 
 Cjllins V. Conty 247 
 
 Collins V. Selbj' : 183 
 
 Collins V. Smith, 131 
 
 Colston V. McKay,« 72 
 
 . Colvin V. Warlord's Lessee, 774 
 
 Combs V. Jackson '. 173 
 
 Commlns V. Commins 885 
 
 Commonwealth v. Dudley 84, 117, 905 
 
 Commonwealth V. McGowan, 101 
 
 Commonwealth v. Studley, 81, 117, 905 
 
 Cone V. Cone, (>5H 
 
 Conkey V. Hart, 324 
 
 Connelly V. Doe IJ97 
 
 Conner V. Nicliols 708 
 
 Conner V. West 385 
 
 Conroy v. Troutman 192 
 
 Converse v. Converse 5)6 
 
 Conway v. Cobb 5S8 
 
 Conway V. Starkweather 221 
 
 Conway v. Whltmore, 617 
 
 Cook V. Babcock 84 
 
 Cookv. Cook 31)7 
 
 Cook V. Lambert 497 
 
 Cookv. Loxly 166 
 
 Cook V. Rider, 617 
 
 Cook V. Travis SM, 921, 911 
 
 Cooley V. Penfleld 472 
 
 Coon V. Brickett 274 
 
 Cooper V. Adams, 335, 836 
 
 Cooper V. Cole, 253 
 
 Cooper V. Galbraith, 43 
 
 Cooper V. Smith, 39, 472, 017, 674, 859 
 
 Copeland v. Stephens, 175 
 
 Co/nelius V. Giberson 895, 910 
 
 Cornell v. Moulton, 211 
 
 Corning v. Troy Iron & Nail Factory,.. 880 
 
 891 9il 
 
 Corson v. Mulvany, '. 60 
 
 Cortelyou v. Van Brundt, 88 
 
 Coruwell v. Crane 349 
 
 PAGE. 
 
 Corwln V. Corwiu, 619, 881 
 
 Coryell V. Cain 76-t 
 
 Cotesworth v. Spokes, £j 
 
 Cottingham v. King ..-••• 394 
 
 Couch V. Turner 81.7, ^i» 
 
 Coughtonv. Pattison, 182 
 
 Coulter's Case, 84J 
 
 Covert V. Irwin, 7^ 
 
 Cowper V. Smith, •■•"■ 57 
 
 Cox V. Joiner, *m, Jf^ 
 
 Cox V. Lacy 401, 402, 58.3 
 
 Cox V.Walker, 192 
 
 Crabtree V. Clark, 9*1 
 
 Craig V.Clark 406 
 
 Crandall v. Gallup 657 
 
 Crane v. Bather, f)9 
 
 Crary v. Goodman, 619, 869, 906, 940 
 
 Craven v. Bleakney, 57 
 
 Crease V. Barrett, 490 
 
 Cresop V. Hutson 75, 125, 774 
 
 Cresson v. Miller ~ 93ii 
 
 Creswell V. Altemus, 9j3, 927 
 
 Croclcer V. Fothingill 37, 4i9 
 
 Crocker V. Fox, 40 
 
 Croft V. Lumley, 316, 456, 607 
 
 Crol't V. Pawlett, 5)3 
 
 Crofts V. Peck, IJj 
 
 Cropper v. Carlton, 581 
 
 Crossland's Executors v. Murdoclt 534 
 
 Croughton v. Black, 497 
 
 Crusoe v. Bugby 285 
 
 Crutsinger V. Catron, 796 
 
 Cunningham v. Bradley, 818 
 
 Cuiiningiiam v. Mllwaukie, 730 
 
 Curd V. Lacliiand, 740 
 
 Currier V. Barker, 33S 
 
 Currier v. Boston and Maine R. R 218 
 
 Currier V. Earl, 223 
 
 Currier v. Gale, 118 
 
 Currier V. Perley, 233, 333 
 
 Curtle V. Palmer, 652 
 
 Cutler V. Miitzer, 123 
 
 Cutting V. Derby 841 
 
 Cuyier V Vanderwort, 595 
 
 Cythe V. La Fontaln 563 
 
 D. 
 
 Dabbv. Baird, 933 
 
 Dadnuni V. Landson, 913 
 
 DahlerV. Signer, 46 
 
 Dalley V. Miller 53 
 
 Danglefield v. Paschal, '. 835 
 
 Daniel v, Davidson, 212 
 
 Daniel v. Le Fevre, 73 
 
 Daniel v. North 78, 83$ 
 
 Dirby V. Mayer, .5W 
 
 Darius v. Walsh 543 
 
 Darst V. Marshall, 131 
 
 D.ivey V. Smith, „ 5)1 
 
 Davidson's Lessee v. Baker, 891 
 
 Davidson's Lessee v. Beatty, 935 
 
 Davis V. Cook, 933 
 
 Davis V. Davis, 145 
 
 Davis v. Martin, 61 
 
 Davis V. Maynard 534 
 
 Davis V. Purdy .393 
 
 Davis V. Stanley, 331 
 
 Davis V. Trays, 785 
 
 Davis V. Whitesides, 4(i3 
 
 Dawley V. Van Court, 13) 
 
 Dawson v. MeGill, 680 
 
 Day V.Cochran 829 
 
 Dayson v. Bradshaw, 763 
 
 Dean, exparte 210 
 
 Dean v. Earley, 138 
 
 Dean v. Pynchion 67 
 
 Dear V. Lord ssg 
 
 Dear v. Snowhill 581 
 
 Deardon v. Lord Byron SO'} 
 
 Deer v. Lane, gj 
 
 De Graw v. Taylor 83t 
 
 Deisson v. McLands 75 
 
INDEX TO CASES CITED. 
 
 XVU 
 
 PAGE. 
 
 Delafleld v. Parish 506 
 
 De Lancy V. Ganun, 303 
 
 De Lanoy V. Jaruey, 830 
 
 Dcunarestv. Willard, 208 
 
 Demerest V. Wyncoop, i 932 
 
 Demeyer v. Lege, 891 
 
 Ben V. Adams, 207, 343 
 
 Deny. Alpaugh 889 
 
 Den V. Applegate 441 
 
 Den V. Blair 343 
 
 Deny. Chubb 840 
 
 Deny. Cochran, 911 
 
 Deny. Craig 343 
 
 Den y. Dow 40 
 
 Den V. Erwln, 401 
 
 Deny. Eyans, 805 
 
 Den y. Fenn,... 416, 434, 441, 449, 466, 660, 661 
 
 Den y. Franklin, 401 
 
 Den y. Harman, 804 
 
 Den y. Ingraliam 401 
 
 Den y. Jones, 775 
 
 Deny. Kimble, 170 
 
 Tf&n. y. Laring, 410 
 
 Den y. Legget, 866, 911 
 
 Den V. Mclnlosh, 365 
 
 Den V. McShane, 880, 383, 392, 662, 671 
 
 Deny. Moore 663 
 
 Deny. Morris, 109 
 
 Den y. Morse, 529, 532 
 
 Deny. Mulford 910 
 
 Den y. Purvis, 397, 580 
 
 Deny. Putney, 862 
 
 Den y. Ridley, 911 
 
 Den y. Robinson, 169 
 
 Deny. Smith, 401, 911 
 
 Den y. Snowhill, 380 
 
 Deny. Spencer, 174 
 
 Den V. Stephens, 804 
 
 Deny. Steward 450 
 
 Den y. Stockton 169, 170, 218, 343, 544 
 
 Den y. Thompson, 576 
 
 Deny. Turies, 670 
 
 Deny. Turner, 871 
 
 Den y. Van Ness 545 
 
 Deny. , 441 
 
 Deny. White, 848 
 
 Deny. "Wright, 109 
 
 Denham y. Holeman, 911 
 
 Dennett y. Dennett, .305 
 
 DePeystery. Michael,...;. 185, 267 
 
 De Pay y. Williams, 764 
 
 Derchane V. Goodtitle, 65 
 
 Dermott v. Wallack 277, 280 
 
 Denickson y. White, 669, 671 
 
 Deuce v. Dobb, 596 
 
 Deyachty. Newsam 685 
 
 Dewey y. Brown, .' 650 
 
 Dewey y. Dewey, 517 
 
 Dewey v.Hoag 619 
 
 Dewey V. Long, 51 
 
 Dewey y. Osborn, 840, 845 
 
 DeWltt y. Barley 498 
 
 De Witty. Brown,. 873 
 
 Dickenson y. Burden 904 
 
 Dickenson y. Jackson 392 
 
 Dickinson's Heirs y. Talbot's Execr.,.. 790 
 
 Dickey y. Armstrong 933 
 
 Dietrick y. Mateer, 674 
 
 Dikeman y. Parish 861 
 
 Dillaye y. Wilson 626 
 
 Dillery. Roberts, 214 
 
 Dillinglram y. Brown, 874 
 
 Dillingham v. Snow 539 
 
 Dobbs V. Passer 441 
 
 Dodd V. Acklow 322 
 
 Dodwell y. Gibbs, 847 
 
 Doe y. Abernathy, 697, 700 
 
 Doe y. Abrahams, '. 174 
 
 Doe y. Adams, 803 
 
 Doey. Alderson 37, 264, 461 
 
 Doe y. Allen 316 
 
 Doe y. Andrews, 175, 539 
 
 Doey. Archer, 239 
 
 Doey. Armfleld, 462 
 
 Doe y. Armitage, 400 
 
 Doey. Arney 219 
 
 Doey. Ashby, 318 
 
 Doe y. Atherly, 593 
 
 Doe V. Avery, 219 
 
 Doe V. Baker 228, 242 
 
 Doe y. Balton, 249, 273, 274 
 
 Doey. Banks, 314,315, 317 
 
 Doe V. Barber 72 
 
 Doey. Barclay 579 
 
 Doey. Barton, 171, 563 
 
 Doe y. Bateman 303, 331 
 
 Doe v. Bath, 394, 402 
 
 Doey. Bather 247 
 
 Doe y. Bayliss, 417 
 
 Doey. Baytup, 557 
 
 Doey. Beach 206 
 
 Doey. Bell 213, 214, 219 
 
 Doey. Bellamy 172, 493 
 
 Doe y. Bennett, 440, 
 
 Doey. Benson, 
 
 Doe y. Bevan, 
 
 Doe V. Bingham, 
 
 Doe V. Birch 301, 313, 
 
 Doe y. Bird, 294, 295, 
 
 Doe y. Black, 
 
 Doe V. Boulton, 222, 
 
 Doe y. Bowman ;. 
 
 Doe V. Bragg, 
 
 Doe y. Brewer, 
 
 Doe y. Brickmore, 
 
 Doe V. Briggs, 193, 195, 
 
 Doe y. Brindiey, 294, 314, 316, 
 
 Doe y. Broad, 
 
 Doe V. Bromley 
 
 Doe y. Brown 212, 213, 244, 253, 
 
 Doe y. Bucknell, 
 
 Doe V. Bulcher, 
 
 Doey. Bunton 
 
 Doe V. Burnett, 
 
 Doe v. Burton, 
 
 Doe y. Butler 78, 201, 240, 243, 576, 577, 
 
 Doe v. Cadwallader, 
 
 Doe y. Calvert, 
 
 Doey. Campbell, 890, 
 
 Doe y. Carpenter, 
 
 Doe y. Carter, 222, 287, 
 
 Doe y. Catsmore, 
 
 Doe y. Cavin 
 
 Doe y. Chambers, 
 
 Doe v. Chaplin, 
 
 Doey. Church, 
 
 Doe v. Clarke 
 
 Doe y. Clifton, 450, 
 
 Doey. Cobb 
 
 Doe v. Cock, 413, 
 
 Doe v. Cockell, 
 
 Doe y. Colvert, 
 
 Doey. Cook, 
 
 Doey. Cooper, 311, 
 
 Doe y. Corkill 
 
 Doe V. Creed, 177, 453, 
 
 Doey. Crick, 235, 
 
 Doe V. Crouch, 
 
 Doe V. Darby, 247, 
 
 Doey. Davies, 195, 197, 
 
 Doey. Davis 2S9, 319, 843, 
 
 Doe y. Day, 
 
 Doe V. Dobill 
 
 Doe y. Donovan, 
 
 Doey. Dunbar, 236, 
 
 Doey. Durnford, 
 
 Doe y. Dyeball, 
 
 Doe v. Dyson 
 
 Doe y. Edmonds, 91, 
 
 Doe V. Edwards, , 90, 396, 
 
 Doe V. Elsam, 
 
 Doe y. Errington, 387, 390, 
 
 Doe y. Eslana, , 
 
 Doe v. Evans, 200, 
 
 Doe y. Ewart, 
 
 Doe v. Eykins, 
 
 239 
 287 
 575 
 317 
 
 477 
 
 575 
 468 
 557 
 221 
 428 
 555 
 382 
 5S7 
 171 
 591 
 597 
 689 
 659 
 816 
 171 
 552 
 912 
 
 541 
 280 
 
 240 
 289 
 545 
 150 
 424 
 219 
 247 
 204 
 449 
 189 
 457 
 236 
 294 
 249 
 319 
 850 
 171 
 238 
 242 
 236 
 551 
 402 
 265 
 93 
 539 
 278 
 606 
 910 
 697 
 196 
 313 
 
XVIU 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Doe V. Fellis, 384 
 
 Doe V. Fenn 388, 475 
 
 Doev. Figgins 389 
 
 Doe V. Fleming 489 
 
 Doe V. Fletcher, 191 
 
 Doe V. Flyna 310 
 
 Doev. Foster, 552 
 
 Doe V. Franklin, 453, 454, 455, 709 
 
 Doev. Frisby, 440 
 
 Doe V. Froud „ 221 
 
 Doe V. Fuller, 557 
 
 Doe V. Gee, 454 
 
 Doe V. Gladwin, 315 
 
 Doev. Golding, 272 
 
 Doev. Goldsmith, 303 
 
 Doe V. Goldwin 171, 227, 228, 552 
 
 Doe V. Grant 476 
 
 Doev. Graves 3»0, 407 
 
 Doev. Gray, 586 
 
 Doev. Griffin, 485 
 
 Doev. Grubb 224, 311, 441, 858 
 
 Doev. Gunn, 576 
 
 Doev. Guiining, 394 
 
 Doev. Guy, 178 
 
 Doev. Hall, 392, 698 
 
 Doe V. Hardy 504 
 
 Doev. Hare, 844, 850 
 
 Doev. Harlow 842, 847 
 
 Doe V. Harney, 490 
 
 Doe V. Harper, 391 
 
 Doev. Harris, 396, 474 
 
 Doe V. Harney 847 
 
 Doe V. Harwood, 246 
 
 Doe V. Hatterly 598 
 
 Doe V. Hawes 504 
 
 Doe V. Hazele, 243 
 
 Doe V. Heather, 386, 392 
 
 Doe V. Hellier, 493 
 
 Doev. Herrick 127, 870 
 
 Doev. Herring, 150 
 
 Doev. Hilder 177, 197, 218, 319 
 
 Doev. Hildreth 698 
 
 Doev. Hiley, 189 
 
 Doev. Hitchcock, 432 
 
 Doe V. Hobbs, 171 
 
 Doe V. Hogg, 287 
 
 Doe V. Honseley, 264 
 
 Doev. Howell, 62, 683 
 
 Doev. Howland, .'. 596 
 
 Doev. Huddart 845, 850 
 
 Doev. Hughes, 232, 246, 462, 588 
 
 Doe V. Humphreys, 249 
 
 Doe V. Hunt, 252 
 
 Doe V. Hurst, 405 
 
 Doev. Inglls 250 
 
 Doe V. Ironmonger, 193 
 
 Doe V. Jackson, 77, 238, 295 
 
 Doev. Jefferson 191 
 
 Doe V. Jeffries, 402 
 
 Doe V. Jesson, 931 
 
 Doe V. Johnson 253, 432, 804 
 
 Doev. Jones, 295, 931 
 
 Doe V. Keeling ■. 293 
 
 Doev. Keen, 199, 484 
 
 Doev. Kendall, 302 
 
 Doe V. Kendrick, 245 
 
 Doe V. Kneller, 272 
 
 Doev. Knight 313 
 
 Doev. Knightly, 238 
 
 Doe V. Lamble, 462 
 
 Doev. Lambley, 555 
 
 Doev. Land 174 
 
 Doev. Lane, 872 
 
 Doev. Langdon 596 
 
 Doev. Lannlng 287 
 
 Doe V. Lansdale, 388 
 
 Doe V. Law 596 
 
 Doev. Lawder , 222 
 
 Doev. Lawrence, 303 
 
 Doev. Lea 243 
 
 Doe V. Leach, 385, 392 
 
 Doe V. Levi, 234 
 
 Doe V. Lewis, 269, 270, 295, 802, 313, 314, 816 
 
 PAGE. 
 
 Doe V. Lightfoot 1^1 
 
 Doe V. Lincoln, •■•■• JJ» 
 
 Doe V. Litherland 451, 5o7 
 
 Doe V. Long »i, ^^* 
 
 Doe V. Lord, 5»» 
 
 Doev. Lucas ^ 
 
 Doe V. Luce, - ^« 
 
 Doev. Lynes ^li 
 
 Doe V. McFarland 17'J 
 
 Doe V. Maddera, 801 
 
 Doev. Maisey, 1™ 
 
 Doe V. Manifold, 501 
 
 Doev. Marchitti, ^9g 
 
 Doev. Marsten, o»i> 
 
 Doev.lMasters," 261, 267, 554 
 
 Doev. Meux -^y-i, 3i<i 
 
 Doe V. Miller 251, 313, 390, 400, 467 
 
 Doe V. Mills M7 
 
 Doev. Minshel ni 
 
 Doev. Mirzan Mi 
 
 Doe V. Mitchell 229 
 
 Doev. Mizin 557 
 
 Doe V. Morse ^1 
 
 Doe V. Murless, 6.2» 
 
 Doev. Needs 196 
 
 Doev. Nichols 196 
 
 Doe V. Nodler 221 
 
 Doe V. Nutt 17^ 
 
 Doe V. Old 317 
 
 Doe V. Owen 584, 587, 700 
 
 Doe V, Oxenden, 550 
 
 Doev. Oxenham, 91 
 
 Doe V. Palmer 250 
 
 Doe V. PasQuali, 224 
 
 Doev. Paul 260 
 
 Doe V. Payne 288 
 
 Doev. Peck 283, 294, 315 
 
 Doev. Peel 419 
 
 Doev. Perkins, 8o« 
 
 Doe V. Perrin 239 
 
 Doev. Perrott, 235 
 
 DoeV. Pettit, 858 
 
 Doe V. Phillips, 296, 554, 594 
 
 Doe V. Pllkington, 400 . 
 
 Doe V. Pitt, 387 
 
 Doe V. Plowman, 197, 320 
 
 Doe V. Porter, 178, 226, 393 
 
 Doev. Powell, 288 
 
 Doe V. Price, 213 
 
 Doe V. Prltchard, 204, 313 
 
 Doev. Prosser 476, 478, 481, 664 
 
 Doev. PuUen, 213 
 
 Doev. Pye 575 
 
 Doev. Quigley, 223 
 
 Doe V. Raby, 462 
 
 Doev. Raffan, 243 
 
 Doe V. Ramsbottom, 556 
 
 Doe V. Read, 233, 313, 388, 458, 475, 568 
 
 Doe V. Reardon 388 
 
 Doe V. Redfern 187 
 
 Doev. Rees, 315 
 
 Doev. Reynolds 311 
 
 Doev. Rhys, 449, 451 
 
 Doev. Richard, 351 
 
 Doe V. Roberts, 595 
 
 Doe V. Robinson, 227, 22S 
 
 Doe V. Robson, 264, 554 
 
 Doe V. Rock 93 
 
 Doe V. Roe, 61, 263, 265, 268, 272, 380, 382, 389 
 391, 399, 403, 406, 410, 411, 483, 435, 438, 440, 442 
 449, 454, 466, 678, 587, 589, 591, 596, 599, 682, 816 
 
 817 
 
 Doev. Roll 170 
 
 Doev. Roper 205 
 
 Doev. Ross 380 
 
 Doev. Rowe, 380 
 
 Doe v. Salter 396, 474, 587 
 
 Doev. Samuel, 245, 550, 552 
 
 Doev. Sayer 222 
 
 Doe V. Scott, 193, 197, 243, 319, 858 
 
 Doev. Seaton 393, 585 
 
 Doev. Shadling, 413, 472 
 
 Doe V. Shadweli 596 
 
INDEX TO CASES CITED. 
 
 XIX 
 
 Doe V. Shane, 
 
 Doe V. Shawoross, ./ 892, 
 
 Doe V. Sherwln, 
 
 Doe V. Simpson, 
 
 Doe V. Skirrow,.. 
 
 Doev.Slaiie 197, 
 
 Doe V. Smitli 226, 302, 419, 449, 466, 
 
 Doe V. Smythe, 
 
 Doev. Snape, 454, 
 
 Doe V. iSnee, 
 
 Doe V. Snowdon, 210, 
 
 Doe V. Somerset, 
 
 Doe V. Somerville, 
 
 Doe V. Spencer, 175, 
 
 Doe V. Spiller, 
 
 Doe V. Spry, 
 
 Doe V. iStanton, 
 
 Doev. Staple, 76, 197, 
 
 Doev. Stephens, 
 
 Doe V. Stephenson 504, 
 
 Doev. Stevens, 294,682, 
 
 Doe V. Stewart, 
 
 Doe V. Stratton, 
 
 Doe V. Suffleld, 
 
 Doe V. Taylor, 
 
 Doe V. Terry 
 
 Doe V. Tetherow 
 
 Doe V. Thorn, 
 
 Doe V. Thomas,. 197, 322, 
 
 Doev. Thompson, 79, 83, 94, 
 
 Doe V. Thomson, 213, 
 
 Doe V. Throp, 
 
 Doev. Tlndal, 
 
 Doe V. Tinins 
 
 Doe V. TucUott, 
 
 Doe V. Turfard 
 
 Doe V. Turner, 94, 
 
 Doe V. Vanness 
 
 Doe V. Vickers, 449, 
 
 Doev. Vivan, 
 
 Doe V. "Wallace, 
 
 Doe V. "Wallbrook, - 
 
 Doev. Walley, 
 
 Doev. Walls, 
 
 Doe V. Walsh, 
 
 Doev. Walters 227,228, 
 
 Doe V. Wandlop, 
 
 Doe V. Wart, 
 
 Doev. Watklns, 234, 
 
 Doev. Webber, 
 
 Doe V. Webster 
 
 Doe V. West, 
 
 Doe V.Wharton 170, 176, 
 
 Doe V. Wheeler, 
 
 Doe V. Whitcom.b 
 
 Doe V. White, 
 
 Doe V. Whitehead, 
 
 Doe V. Whitroe, '. 
 
 Doe V. Wilbur 
 
 Doe V. Wilkinson, 
 
 Doe V. Williams,.. 195, 197, 319, 341, 575, 
 
 Doe V. Wilson 274, 584, 
 
 Doev. Winch, 
 
 Doev. Wippel, 
 
 Doev.Wood, 
 
 Doe V. Woodman, 
 
 Doe V. Woodroffe, 
 
 Doe V. Woods 
 
 Doe V. Wrlghtman 237, 
 
 Doe V. Wylder 
 
 Dominy V. Miller •. 
 
 Donaldson v. Wailie, 
 
 Doolittle v. Blakeslee, 
 
 Doolittle V. Eddy, 40, 558, 
 
 Doolittle V. Lindsey, 
 
 Doolittle V. Tioe, 
 
 Dormer v. Fortescue, 
 
 Dorrell v. Johnson, 
 
 Doswell V. De La Sanza, 911, 
 
 Dougherty v. Dougherty, 
 
 Douglas V. Fay 
 
 Douglas V. Shank, 
 
 Dow V. Bowditeh, 
 
 PAGE. 
 
 Dow V. Hardenburgh, 168 
 
 Dow V. Plummer 641 
 
 Dow V. Stephens, 905 
 
 Downer's case, 554 
 
 Downing V. Miller, 569 
 
 Downs V. Turner, 261 
 
 Draman v. Walker, 936 
 
 Drane v. King, 825 
 
 Draper v. Shoot, -. . 895 
 
 Drayton V. Marshall, 855 
 
 Driver v. Lawrence, 449 
 
 Drury v. Fitch 202 
 
 Drury Lane Co. v. Chapman 321 
 
 Dubois V. Marshall, 942, 943 
 
 Dubois V. Mitchell 942 
 
 Dubois V. Newman 837 
 
 Duchanev. Goodtitle, 44, 178 
 
 Dudley V. Grayson, 401 
 
 Dufour V. Campane 870 
 
 Dumont V. Dular 127 
 
 Dumfree's case, 296 
 
 Dunlap V. Dougherty, 130 
 
 Dunn V. Dunn, 412 
 
 Dunn V. Fulford 595 
 
 Dunn V. Purvis, 398 
 
 Dunn V. Starkweather, 732 
 
 Duplex V. De Roven 928, 931 
 
 Duty V. Graham, 835 
 
 Duval V. Bibb, 383, 784 
 
 B. 
 
 Eadesv. Hucker 199 
 
 Eager V. Commonwealth, 932 
 
 Eakin V. Burger, 797 
 
 Earl V.Baxter 556, 569 
 
 Eastin v. Ruoker, 472 
 
 Eaton V. Smith 67, 75, 618 
 
 Eaton V. Wyckoff, 599 
 
 Eckels V. Stewart, 60 
 
 Edwards v. Bishop, 41, 200, 477, 621 
 
 Edwards v. Farmers' Fire Insurance 
 
 Co 289, 617, 783 
 
 Edwards V. Griffith 435, 607 
 
 Edwards v. Parkhnrst, 938 
 
 Edwards v. Boys, 945 
 
 Eells V. Day 657 
 
 Elchartv. Bargas, 369 
 
 Eldon V. Doe.. 65, 72, 696 
 
 Eldon V. Kiddell .- 539 
 
 ElUcott V. Mosher, 617 
 
 Ellicottv. Pearl 892, 896 
 
 Elliott V. Bohannon, 383 
 
 Elliott V. Newhold, 802 
 
 Elliott V. Piersol 712 
 
 Elliott V. Smith 354 
 
 Elliott V. Stone, 301, 336 
 
 Ellis V. Ellis 606 
 
 Ellis V. Paige, 214 
 
 Ellithorpe v. Buck, 687 
 
 Elmendorf V. Taylor '855 
 
 Elwood V. Lawrence's Lessee, 774 
 
 Ely V. McGuire 169 
 
 Emans v. TurnbuU, 205 
 
 Empsomv. Giberson, 110 
 
 Enders v. Sternburgh, 571 
 
 Enfleldv. Day 906 
 
 Enfleld v. Penwlck, .' 74 
 
 England v. Helms 371 
 
 England V. Slade 166,354, 556 
 
 Ensign v. Sherman, 617 
 
 Erskine v North, - 148 
 
 Erwin v. Helme, 538 
 
 Etzv.Daily, 39 
 
 Evans v. Elliot, 171 
 
 Evans v. Hastings, 39 
 
 Evans v. Millard, 634 
 
 Evans v. Morgan, 487 
 
 Evelyn v. Raddish, 283 
 
 Everenden V. Beaumont, 938 
 
 Ewing V. Alcorn, 673 
 
 Ewing V. Burnett 860, 892, 895 
 
XX 
 
 INDEX TO CASES CITED. 
 
 F. PAGE. 
 
 Fahnstock V. Fahnstoek, 244 
 
 Failing V. Schenolc, 919 
 
 Fainv. Garthright, 817 
 
 Fairclaim v. Shackleton 476 
 
 Falrolalm v. Shamtitle, 445, 447 
 
 Fairtitle V. Gilbert, 567 
 
 Falkner v. Dorman, 135 
 
 Fanning V. Wilcox, 914, 917 
 
 Far V. Dunn, 584 
 
 Farley V. Craig, 343 
 
 Farley V. Goochen, 69, 730 
 
 Farley V. Lenox, 900 
 
 Farmer's Loan & Trust Co. v. Kursch, 688 
 
 Farrarv. Eastman 927 
 
 Farrar V. Fessenden, 895, 907 
 
 Farrow V. Edmondson, 223 
 
 Farrow V. Farrow' 581, 584 
 
 Fawks V. Darnall, 161 
 
 Fay V. Taft 53 
 
 Felder V. Bennett, 810 
 
 Fellv. Cassford 131 
 
 Fenn v. Griffith, 550 
 
 Fenn y. Holme, 43, 75, 837 
 
 Fenny. Roe 424 
 
 Fenny. Smart 297, 556 
 
 rFenn v. Smith, 
 
 Fenner V. Duplock 556 
 
 Fenwiok v. Floyd 394, 529, 532 
 
 Fenwick y. Grovernor, 450, 598 
 
 Fenwick's ease 451 
 
 Ferguson V. Staver, 680 
 
 Ferris V. Brown, 88 
 
 Fatherly y. Waggoner, 499 
 
 Field, in re, 501 
 
 Fifty Associates V. Howland, 301 
 
 Fijervary v. Sanger, 70 
 
 Finey. Gray, 737 
 
 Fine v. Jackson, 576 
 
 Fine v. St. Louis Public Schools 740 
 
 Finlay V. Cooli, 873 
 
 Fisher v. Hughes, ; 583 
 
 Fisher V. Larick 394, 673 
 
 Fisher v. Morlick, 719 
 
 Fiskv. Holmes 232 
 
 Fisk V. Miller, &36 I 
 
 Fite V. Doe 580, 700 
 
 Fitzpatrick V. Fitzpatrick, 6.54 
 
 Fit'zrandolph V. Norman, 904 
 
 Fladland v. Delaplaine, 68 
 
 Flanders V. Davis, ; G43 
 
 Fleming v. Armfleld, 462 
 
 Fleming y. Griswold, 108, 930 
 
 Fleming V. Powell, 871 
 
 Floyd V. Bethill 590 
 
 Floyd y. Mintsey 152, 876 
 
 Fonda y. Van Home 173 
 
 Ford V. Flint ,. 648 
 
 Ford V. Ford 487 
 
 Ford V. Gray, 199, 567 
 
 Ford y. Kennedy 760 
 
 Ford y. Sampson, 619 
 
 Fordv. Wilson 907 
 
 Fortierv. Ballarde, 312 
 
 Fortune V. Rnck, ." 518 
 
 Fosgate v. The Herkimer Manufactur- 
 ing and Hydraulic Co 481,486,489, 622 
 
 625, 886 
 
 Foster V. Abbott _ -.._ 946 
 
 Fowler V. Whitman, 686 
 
 Foxv. Nathan, 338 
 
 Foxv. Swan, 313 
 
 Foxcroft V. Barnes, 945 
 
 Frasler y. Hall 384 
 
 Frakes y. Brown. 698 
 
 Frame y. Kenny's Heirs, 835 
 
 Francis V. Doe, 657 
 
 Francois v.De LaRonde 871 
 
 Franklin V. Dorland, 144 
 
 Franklin y. Talmadge, 494 
 
 Frederick v. Gray 476 
 
 Freeman v. Jury, 550 
 
 Freeman v. Oldham's Lessee, 483 
 
 French v. Pearce 488 
 
 French v. Rollins, 30o 
 
 Frendelly. Collins .-■.•■ 933 
 
 Frigue v. Hopkins 870, 871 
 
 Frizzle v. Beach 936, 94d 
 
 Fryatty. Jeffreys, 314 
 
 Fuller V. Wadsworth, 169, 217, 543 
 
 Fulton V. Stuart 209 
 
 Furdson V. Clegg, 91 
 
 Furley y. Wood, -239 
 
 G. 
 
 Gabbot V. Ejector '. 435 
 
 Gage V. Gage, 114 
 
 Gaines y. Buford, 200 
 
 Gaines v. Hale, •••.. 833 
 
 Gaines V. Stiles 538, 685 
 
 Galbraithv. Fenton 58, 179 
 
 Galbreath v. Doe .^.. 697 
 
 Gallagher V. McNutt 467, 677 
 
 Gamble v. Gamble 511 
 
 Ganse V. Wllley 179 
 
 Gardiner V. Kennard, 283 
 
 Gardiner v. Murray's Lessee 438 
 
 Gai-diner v. Tisdale 68, 70, 718 
 
 Gardiner Peerage case, 562 
 
 Gardiner V. Norman 391 
 
 Garner v. Hannah, 301 
 
 Garner v. Manhattan Building Ass.,... 617 
 
 Garrett V. Lister, 539 
 
 Garrett V. Lyle 73 
 
 Garrett v. Scouton, 
 
 Garrison v. Sampson 764 
 
 Garwood V. Dennis, 567 
 
 Gay V. Mitchell, 154 
 
 Gaylordv. Couch, 121 
 
 Gayoso De Lemnos y. Garcia, 163 
 
 Gennett v. Lynn 923 
 
 George V. Thomas, 835 
 
 George v. Wisdern, 592 
 
 Gibert v. Peteler, 43 
 
 Gibson V. Gibson 498 
 
 Gibson V. Martin 893 
 
 Gibson V. Seymour .55 
 
 Gibson v. Shearer 939 
 
 Gilbert V. Emerson, 930 
 
 Gillett V. Eaton 67, 70, 718 
 
 Gillett V. Neganza 67 
 
 Gillett V. Stanley 200 
 
 Gillett V. Tragauza, 75, 718 
 
 Gilliam V. Bird, 804 
 
 Gilman V. Winslow, 904 
 
 Girault V. Zuntz, 831 
 
 Gilman, In matter of 607, 512 
 
 Gist V. Cattel 152 
 
 Gittens V. Lowery, 861 
 
 Glass V. Doe 700 
 
 Glen V. Gibson, 925 
 
 Gloucester, First Parish in y. Beach, .. 883 
 
 Glover V. Cope 118, 209 
 
 Godfrey V. Cartwright, 805 
 
 Godfrey y. Townsend, 62.S 
 
 Gomber V. Hackett, 315 
 
 Gooch V. Bryant, ', 541 
 
 Goodman v. Russ, 122 
 
 Goodright V. Badtitle, 468 
 
 Goodright V. Cater, 254, 266, 554 
 
 Goodright v. Cordwent 247, 275, 277 
 
 Goodright v. Davids, „ „ 31S 
 
 Goodright V. Davis, 273 
 
 Goodright v. Fordson, 395 
 
 Goodright v. Forrester, 297 
 
 Goodright v. Hart 443 
 
 Goodright V. Moss, 491, 492 
 
 Goodright V. Noright 268 
 
 Goodright v. Saul, 562 
 
 Goodright v. Thrustout 417 
 
 Goodright y. Vivian, 290 
 
 Goodtitle V. Alker 39 
 
 Goodtltle y. Badtitle, 381, 408, 417, 423, 427 
 . 430, 432, 441, 587 
 
 Goodtltley. Herbert 392 
 
 Goodtltle V. Holdfast, 261, 267 
 
INDEX TO CASES CITED. 
 
 XXI 
 
 PAGE. 
 
 Goodtitle V. Jones, . . / 192, 197, 319 
 
 Goocltitlev. Lammiman, 396, 473 
 
 Goodtitle V. Morgan, 171 
 
 Goodtitle V. Notrtle 409 
 
 Goodtitle V. Roe 880, 381, 407, 820 
 
 Goodti tie v. ThrQstout, 426 
 
 Goodtitle v. Tombs, 839, 841, 848 
 
 Goodtitle V. Walter 396, 473 
 
 Goodtitle V. Way 220 
 
 Goodtitle V. Woodward, 227, 280 
 
 Goodwin V. Blacliman, 395, 397 
 
 Goodwyn y. Myers, 786 
 
 Gordon v. GUraan, 331 
 
 Gordon V. Pearson, 481, 482 
 
 Gore V. Marshall, 161 
 
 Goring V. Shreer,.. 547 
 
 Goslien V. Brenon 473, 801 
 
 Gospel Prop. Soo. v. Hall 643 
 
 Gott V. Powell, 740 
 
 Goulding V. Clarlc 72 
 
 Gover v. Cooley 441 
 
 Gratirersv. Tottenham, 927 
 
 Graham v. Peat, 166 
 
 Graham v. Whi tely, 498. 519 
 
 Granger v. Brown, 336 
 
 Grant V. Cliase, 305 
 
 Grant v. B'o wler, 907 
 
 Grant v. Ramsey, 347 
 
 Grant V. Thompson, 498 
 
 Grant v. Townsend 305, 306 
 
 Grant v. Winborne, 861 
 
 Gratz V. Benner, 430, 674 
 
 Gravenorv. Woodhouse,... 166 
 
 Graves v. Walls, 284 
 
 Gravier V. Livingston, 163 
 
 Gray v. Bumpus, 252 
 
 Grayv.Jenks, i... 49 
 
 Gree v. RoUe, 534 
 
 Green v. Biddle, 849 
 
 Green v. Bridges, 318 
 
 Green V. Chelsea, 179 
 
 Green v. Litter, 858, 897 
 
 Green v. Munsen, 223, 312 
 
 Green V. Neal's Lessee^ 860 
 
 Green V. Oneida Com. Pleas, 412 
 
 Greenman v. Legge, 322 
 
 Green way V. Adams, 281 
 
 Greer V. Mezes, 769 
 
 Gregg V. Sayre's Lessee, 863 
 
 Gregg V. Tesson, 44 
 
 Gregory V. Henderson, 194 
 
 Gregory v. Jackson, 581, 785 
 
 Gregory -v. Tozen, 641 
 
 Grifllth v. Cochrane, 69 
 
 Griffith V. Dobson, 588 
 
 Griffith v. Pritchard, 284 
 
 Griffin V. Sheffield,...: 157, 829 
 
 Grifflng v. Mills 157 
 
 Grimes v. Kobbins, 929 
 
 Griswold v. Butler 884, 932 
 
 Grof t V. Wealcland, 907 
 
 Groton v. Smith 219 
 
 Grumble V. Bodily, 598 
 
 Gulion V. Drinkwater 588, 843 
 
 Gullion V. Wagstaff, 431 
 
 Gurno v. Jarvis, 738 
 
 Guy V. Moffltt, 875 
 
 Guy V. Rand, .397 
 
 Guyer V. Wookey 66, 707 
 
 H. 
 
 Haddnck v. Wilmarth 936 
 
 Hale V. Glidden, 114, 893, 996 
 
 Hall V. Dewey, 223 
 
 Hall V. Doe, 544, 558 
 
 Hallv. GiUings, 571,775, 894 
 
 Hall V. Gough, 775 
 
 Hall V.Lane, 708. 
 
 Hall V.Powell 905 
 
 Hall V. Stevens, 83, 861 
 
 Hall V. Wadsworth 334 
 
 Hambleton v. Wells, 578 
 
 Hamilton v. Jack, 761 
 
 Hamilton v. Moseland, 820 
 
 Hamilton v. Paine 801 
 
 Hamilton v. Shepard, .8-55 
 
 Hamilton v. Whiteley Township, ...59, 60 
 
 Hamilton v. Wright 938 
 
 Hammerlin v. Stead 321 
 
 Hammond v. Inloes 62, 75, 774, 775 
 
 Hammond v. McLachlan 891 
 
 Hammond V. Ridgley, 693 
 
 Hammond v, Ripley, 905 
 
 Hammond v. Warfleld, 894 
 
 Hanberger v. Root, 59 
 
 Hancock v. Wentworth, 53 
 
 Hand v. James 503 
 
 Hanna V. Renfro, 873. 904, 944 
 
 Hannav. Tliompsou, 83 
 
 Harding V. Greensmith, 434 
 
 Harding v. Strong 709 
 
 Hargrave v. Powell 802,^27, 478 
 
 Hargus v. Goodman, 700 
 
 Harlan v. Seaton, 933 
 
 Harle V. McCoy, 40 
 
 Harlock V. Jackson, , 151 
 
 Harman V. Harmau, 487 
 
 Harrnan V. Steinman 69, 730 
 
 Harp'ending v. Reformed Protestant 
 
 Dutch Church, 887 
 
 Harper v. Whlttaker, 681 
 
 Harrington V. Worcester, 538 
 
 Harris V. Byrant, 318 
 
 Harris v. Cameron 820 
 
 Harris v. Masters, 268 
 
 Harris v. SafTord, 618 
 
 Harris v. Vinyard, 738 
 
 Harrison v. Botts, 201 
 
 Harrison v. Elwin, 501 
 
 Harrison v. Marshall, 369 
 
 Harrison v. Middleton 365 
 
 Harrison v. Rowan, 519 
 
 Harrison v. Stevens 580, 617 
 
 Harrison v. Taylor 739 
 
 Hart v. Henderson, 692 
 
 Hart V. Turner 8o7 
 
 Plartley V. Farrell 832 
 
 Harverv. Norris, 39, 59 
 
 Harvey V. Baker, 597 
 
 Harvey v. Taylor 783, 859 
 
 Hassell V. Goldthwalt, 179, 302 
 
 Hatch V. Hatch 861 
 
 Hatch V. Vt. Cen. R. R., 891 
 
 Haven V. Adams, 839 
 
 Hawkins v. Hays, 682 
 
 Hawn V. Norris -673 
 
 Hayden v. Stewart, 737 
 
 Hayward v. Gifford. 687 
 
 Hazaltine V. Colburn, 3.33 
 
 Hazelwoodv. Thatcher, 409 
 
 Heard v. Baird 829 
 
 Heatherljr V. Western 201, .337 
 
 Helfenstein v. Leonard .'. 674 
 
 Helms V. Howard, 474 
 
 Helms V. May, 945 
 
 Hemphill v. Teeis, 252 
 
 Hencliett V. Whitney 214, 334 
 
 Henderson V. Cargill, 487 
 
 Henderson v. Harkney, : 820 
 
 Henderson v. Hays 58 
 
 Henderson V. Kenner, 808, 310 
 
 Henderson V. Parker 567 
 
 Hennege v. Elliot, 57 
 
 Hennesy V. Farrell, .■ 67,354, 710 
 
 Henry v. Bishop, 508 
 
 Henryv. Evarts 767 
 
 Herbert v. Alexander, 588, 783 
 
 Herriok V. Doe, 874 
 
 Herring v. Fisher, 891 
 
 Heydenfeldt v. Mitchell 825 
 
 Heyward v. Judd 724 
 
 Hickey v. Stevens 75 
 
 Hickox v. Tallman, 533 
 
 Hicks v. Davis, 70 
 
XXll 
 
 INDEX TO CASES CITED. 
 
 Hicks V. Rogers, 201 
 
 Higgins V. Highneld, 843 
 
 Hlgliamv. Ridgeway, 489' 
 
 Highmanv. Barlow, 375 
 
 Hildretliv. Thompson, 916 
 
 Hill V. Barclay, ■. 318 
 
 Hill V. Bell, 524 
 
 Hillv. Boyland, 157 
 
 Hill V. Connelly, 152 
 
 Hill V. Croclcford 514 
 
 Hillv. Draper 70, 72, 6b9 
 
 Hillv. Hill, 60,487, 923 
 
 Hillv. Kircke, 718 
 
 Hill V. McCarthy 619 
 
 Hillv. McKinnon, 100 
 
 Hillv. Meyers 681, 849 
 
 Hill V. Mitchell, 833 
 
 Hillv. Payson, 52 
 
 Hillv. Robertson, 807 
 
 Hill V. Saunders 153, 809 
 
 Hill V. Wilson, 872 
 
 Hill's Heirs v. Shrader, 893 
 
 Hilliardv. Doe, '. 816 
 
 Hillingsworth v. Brewster, 42, 450 
 
 Hillman v. Baumbacli, 83.5 
 
 Hinchraan V. Whitstone, , 131 
 
 Hinton v. Fox, ,. 855 
 
 Hinton V. McNeil, 590, 686 
 
 Hipp V. Forester 806 
 
 Hirserv. Riehel, 903 
 
 Hoa V. Lefranc 830 
 
 Hobson v. Blackburn, 496 
 
 Hobson V. Dobson, 457 
 
 Hobson V. Doe, 697 
 
 Hockeuburg v. Sneider, 223, 895 
 
 Hodges v. Eddy, 900 
 
 Hodgson V. Gascoigne, 590 
 
 Hodgson V. Sharp 166 
 
 Hoeg V. "Wallace, 114 
 
 Hogan V. Grosvenor, 517 
 
 Hogeboom v. Hall, 167 
 
 Hogsett v. Ellis, S49 
 
 Holoomb V. Tracy, 137 
 
 Holdfastv. Clapliam, 493 
 
 Holdfast V. Jackson 596 
 
 Holdfast V. Shepard, 841, 910 
 
 Holdrige V. Gillespie, 920, 926 
 
 HoUenbaoli V. Fleming, 508 
 
 HoUiday V. Ward 620 
 
 HoUingsworth V. Snyder, 358 
 
 Holmanv. Biddle, 520 
 
 Holmes v. Davis 247, 634, 838, 843, 849 
 
 Holmes v. Seeley, 173, 468, 538 
 
 Holtv. Hemphill, 538, 685 
 
 Holtv. Reed, 708 
 
 Holtv. Smith 461 
 
 Holton v. Whitney 907, 916 
 
 Holyoke V. Hoskins, 650 
 
 Hood V. Beachamp, 487 
 
 Hoodv. Hood, 910 
 
 Hood V. Palmer 808 
 
 Hood V. Walton 914 
 
 Hooker V. Utica & Minden Co., 891 
 
 Hooper V. Dale, 378 
 
 Hooper V. Scheimer, 77 
 
 Hopkins v. McLauren, 593 
 
 Hopkins v. Stephens 64 
 
 Hopkins V. Ward 64,75,583, 784 
 
 Hornev. Fonda, 920 
 
 Horsey's Lessee v. Horsey, 363 
 
 Horton v. Crawford, 165 
 
 Hosford V. Ballard 329 
 
 Hoskins v. Holme, 871 
 
 Hotalling V. Hotailing, 40, 558 
 
 Hotohkiss V. Butler, 656 
 
 Hovenden V. Lord Annesley, 311, 855 
 
 Howard V. Cromwell, 474 
 
 Howard V. Gardiner, 677 
 
 Howard v. Howard, 618, 884 
 
 Howard v. Moak, 577, 580 
 
 Howard V. Mitchell, 465 
 
 Howard V. Perry, 835 
 
 Howard v. Beedy, 9ff7 
 
 PAGE. 
 
 Howard V. Wemsly 241 
 
 Howell V. Eldridge, 591 
 
 Howell V. Hair V^ 
 
 Howell, Goods of, oM 
 
 Howes V. Gillett 72b 
 
 Hoxie V. Finney ••■••• 652 
 
 Hoy V.Perry, 893, 893 
 
 Hoyle V. Stowe, ■■ fJf 
 
 Hoysradt v. Kingman, oil 
 
 Hoytv. Dillon 919 
 
 Hoyt V. Thompson, m* 
 
 Hubbard V. Barry, 72 
 
 Hubbellv. Armstrong 242 
 
 Hubbell V. Sibley 610 
 
 Hubert V. Alexander, 448 
 
 Hubert v. Tuckall, 492 
 
 Huckins V. Shaw, 610 
 
 Huddleston v. Garret, 72 
 
 Hudson V. Parker, 503 
 
 Hufl'ell V. Armstead, 243 
 
 Hufflns V. Kelcham, 397 
 
 Hughes v. Barrow, 831 
 
 Hughes V. HoUiday 70, 732 
 
 Hughes V. Lumley, J7b 
 
 Hughey V. Sidwell's Heirs, 526 
 
 Hultain v. Mungle, 336 
 
 Humbert v. Trinity Church, 478, 86o 
 
 Humphreys V. Frank 241, 610 
 
 Hunt V. Allgood, 224 
 
 Hunt V. Crawford, 196 
 
 Hunt v. Hunt, 946 
 
 Hunt V. Johnson, 5i2, 573 
 
 Huntv. MoFarland, 673 
 
 Hunter V. Britts 842 
 
 Hunter V. Chrisman, 903, 906 
 
 Hunter V. Fairfax, 401 
 
 Hunter V. Osterhoudt, 248 
 
 Hunter V. Sandy Hill, 671 
 
 Huntington V. Forkson, 636 
 
 Huntington V. Jewett, 730 
 
 Huntington v. Whaley, 88S 
 
 Hutchinson v. Greenwood 587, 610 
 
 Hutchinson v. Hutchinson 152 
 
 Hutchinson v.Perley, 70, 72 
 
 Hutchins V. Lasley, 128 
 
 Hiiyserv. Chase, 349 
 
 Hyltonv. Brown 77, 849 
 
 I. 
 
 xmlay v. Union Branch Railroad Co... 891 
 
 Indiana V. Woram, 187 
 
 Inis V. Crawford, 201 
 
 Inns V. JSTunn, 72 
 
 Ireland V. Hail 517 
 
 Irish V. Scovell 401, 674 
 
 Irish V.Smith 497 
 
 Ives V. Lott, 593 
 
 Ives V. Sawyer, 803 
 
 J. 
 
 Jackson v. Agan, 293 
 
 Jackson v. Allan 248, 278, 315, 318 
 
 Jackson v. Andrews, 291, 414, 581, 865, 872 
 
 Jackson V. Ayres, 166 
 
 Jackson V. Babcock ". 449 
 
 Jackson V. Bailey, 401 
 
 Jackson v. Bard, 166, 570, 878 
 
 Jackson V. Bell, 470 
 
 Jackson V. Betts, 497 
 
 Jackson V. Birner 875 
 
 Jackson v. Blaushan, 499 
 
 Jackson v. Boueham, 486, 494 
 
 Jackson V. Boweu 577, 896, 903 
 
 Jackson V. Bradford, 924 
 
 Jackson v. Bradt, 201, 202, 21B, 226, 933 
 
 Jackson V. Brink, 926 
 
 Jackson v.Britton, 291 
 
 Jackson v. Brownell, 293 
 
 Jackson V. Brownson 284, 290 
 
 Jackson v. Bryan 215, 223 
 
 Jackson V. Buell S7, 42 
 
IKDEX TO CASES CITED. 
 
 xxm 
 
 PASB. 
 
 Jackson v. Bushnell, 595 
 
 Jackson v. Camp 6C9, 862, 878, 894, 896 
 
 Jackson V. Chapin 571 
 
 Jackson v. Chase 217, 225, 5M, 515 
 
 Jackson V. Clark S69, 597 
 
 Jackson v. Cody, 494 
 
 Jackson V. Colden, 5J4 
 
 Jackson V. Cole, 542 
 
 Jackson v. Collins ' 260, 270, 924 
 
 Jackson v. Combs, 846 
 
 Jackson V. Cooley 491 
 
 Jackson v. Corlear, 574 
 
 Jackson v.. Corliss, 288 
 
 Jackson V. Cornelius, 846 
 
 Jackson V. Cristman, 499 
 
 Jackson v. Cray 921 
 
 Jackson v.-Cuerden, 921 
 
 Jackson V. Davenport ; 677 
 
 Jackson v. Davis, 81, 83, 354, 9lS 
 
 Jackson v. Demont, 75, 878, 469, 470, 937 
 
 Jackson v. Dennis, 401 
 
 Jackson V. Denniston, 459, 542 
 
 Jackson V. Dieffendorf, 573, 684 
 
 Jackson V. Ditz, 401 
 
 Jackson v. Dobbin, 642 
 
 Jackson v. Dysling 673 
 
 Jackson V. Edwards 687,596, 697 
 
 Jackson V. EUis, 926 
 
 Jackson V. Elston, 896 
 
 Jackson v. Flint, 448 
 
 Jackson V. Foster, 225, 378 
 
 Jackson v. Frost, 871, 876 
 
 Jaclison V. Fuller 217, 644 
 
 Jackson T. Gardner, 322 
 
 Jackson v. Goes, 494 
 
 Jackson v. Green, 217, 226, 544 
 
 Jackson v. Groat, 256, 285 
 
 Jackson v. Gumaer, 944 
 
 Jackson v. Halstead, 889 
 
 Jackson v. Hardenburg, 89.^ 
 
 Jackson v. Harder, 86, 166 
 
 Jackson v. Harrison, 201, 281, 285 
 
 Jackson v. Harrow, 473 
 
 Jackson v. Harsen, 881, 918 
 
 Jackson v. Hart 494 
 
 Jackson V. Hasbrouck 529 
 
 Jackson v. Hathaway, 38, 891 
 
 Jackson v. Haviland, 589 
 
 Jackson v. Hawley, 588, 589 
 
 Jacltson V. Haynes, 455 
 
 Jackson v. Hazen 86, 455, 581 
 
 Jackson V. Hinman 924 
 
 Jackson v. Hogeboom 272 
 
 Jackson v. Hopkins, 217 
 
 Jackson v, Hotchkiss 558 
 
 Jackson v. Howe, 323 
 
 Jackson V. Hudson 483, 943 
 
 Jackson v. Hughes, 65, 217, 351, 699 
 
 Jackson v. Huntington 82, 826 
 
 Jackson v. Ingraham 875 
 
 Jackson v. Johnson, 323, 878, 884, 928 
 
 Jackson V. Jones, 178, 532 
 
 Jackson V. Kipp, 260 
 
 Jackson v. Leek 169, 462, 922, 925 
 
 Jackson V. Leggett, 937 
 
 Jackson V. Leonard 912 
 
 Jackson v. Long, 926 
 
 Jackson v. Longhead, 215, 217, 544 
 
 Jackson v. Loomis, 569, 849 
 
 .Tacksonv. Luquere 499 
 
 Jackson v. Lyons, 459 
 
 Jackson v. Lytic, 459 
 
 Jackson v. McCall, 573 
 
 Jackson v. McOlasky, 378, 479 
 
 Jackson V. MoConuell, 168, 470 
 
 Jackson v. MoBvoy, 448 
 
 Jackson v. McLeod, 325 
 
 Jackson v. Manllus ; 306, 569 
 
 Jackson V. Marsix, 547 
 
 Jackson V. May, 37, 42 
 
 Jackson V. Miller 216, 310 
 
 Jackson v. Monorief, 39, 216, 658 
 
 Jackson v. Moore 569, 927 
 
 PAGE. 
 
 Jackson v. Murray, 401, 403 
 
 Jackson v. Newton, ... 108, 801, 862, 921, 928 
 
 Jaclcsouv. Oltz, 896 
 
 Jackson v. Page , 529 
 
 Jackson v. Parker 108, 875, 920 
 
 Jackson v. Parkhurst, 225, 325, 570 
 
 Jackson v. Peer, 839 
 
 Jackson v. Pierce, 75 
 
 Jackson v. Porter, 71, 859, 904 
 
 Jackson V. Potter, 861 
 
 Jackson v. Ramsey, 470 
 
 Jackson v. Randall 844 
 
 Jackson v. Bathbone 588, 589 
 
 Jackson V. Rice 575 
 
 Jackson V. Rich 293, 470 
 
 Jackson v. Richards, 896, 901 
 
 Jackson v. Riciimond, 401, 403 
 
 Jackson V. Robins, 108 
 
 Jackson v. Rogers, 81, 83, 310 
 
 Jackson v. Bumsey, 606 
 
 Jackson v. Salisbury, 417 
 
 Jackson v. Salmon 214 
 
 Jackson v. Schauber, 597 
 
 Jackson v. Sciioonmaker, 828, 830 
 
 Jackson v. Schutz 266, 286 
 
 Jackson v. Scissam 542 
 
 Jackson v. Scoville, .'.....414, 456 
 
 Jackson v. Sellick, 323 
 
 Jackson v. Sharp 602, 875 
 
 Jackson v. Sheldon, 248, 278 
 
 Jackson V. Shepard 538 
 
 Jackson v. Sidney 389 
 
 Jackson V. Si Ivernall 256, 281, 285 
 
 Jackson V. Smith 401, 438, 924, 926 
 
 Jackson v. Spear, 167, 923, 925 
 
 Jackson v.Stackhouse, 217, 225, 544, 545 
 
 Jackson V.Stanley 494 
 
 Jackson v. Stiles, 399, 433, 440, 441, 
 
 448, 449, 451, 452, 458, 587, 595, 596 
 
 Jackson V. Stone, 840 
 
 Jackson v. Tliomas, 102, 871, 876 
 
 Jackson v. Thompson 108, 499 
 
 Jackson v. Tibbetts, 292, 927 
 
 Jackson v. Todd, 483 
 
 .Jackson v. Topping 180, 300 
 
 Jackson v. Tower 178, 530, 920 
 
 Jackson V. Travis. 401, 578 
 
 Jackson v. Turnstall, 268 
 
 Jackson v. Tuttle, 584, 592 
 
 Jackson v. Van Antwerp, 586 
 
 Jackson v. Van Deusen, 499, 501 
 
 Jackson v. Vedder 673 
 
 Jack.son v. Vermilyea 896 
 
 Jackson v. Vickery, 512 
 
 Jackson v. Vincent 307, 312 
 
 Jackson v. Vosburgh, > 310 
 
 Jackson V. Vredenburgh 937 
 
 Jackson V. Walker 166, 558, 559 
 
 Jackson V. Warford 891 
 
 Jackson v. Warren, 548 
 
 Jackson v. Waters, 875, 891 
 
 Jackson V. Wheat 861, 890 
 
 Jackson v, Wheeler 223, 378 
 
 Jackson v. Whltbeck 223 
 
 Jackson v. White 451 
 
 Jackson v. Wilsey 215, 226, 5-50 
 
 Jackson v. Wilson, 270 
 
 Jackson v. Wood 414, 849 
 
 Jackson V. Woodruff, 862, 896, 897, 901 
 
 Jackson v. Woods 581 
 
 Jackson v. Wyckoff, 265 
 
 Jackson v. Young, 529, 579 
 
 Jacobs V. Rice 132 
 
 James v. Shear 252 
 
 Jameson v. Smith 738 
 
 James River and K. Co. v. Robinson,.. 786 
 
 Janse v, Riley, 58 
 
 Jared v. Goodtitle 65 
 
 Jarrett v. Tomlinson, 944 
 
 Jarrett V. West 542 
 
 Jarvis v. Woodruff, 121 
 
 Jauncey v. Thorne, .■.509, 511 
 
 Jayne v. Price 70 
 
XXIV 
 
 INDEX TO CASES CITED. 
 
 PAQB. 
 
 Jefferson v. Morton, 193, 196 
 
 Jemott V. Cowley, 179 
 
 Jenkins v. Busbee, 487 
 
 Jenkins v. Cliurcli, „ 273 
 
 Jenkins v. Pritcliard, 483, 485 
 
 Jenner V. Tracy 855 
 
 Jenney v. Cntts 417, 423, 436 
 
 Jermyn V. Hervey 502 
 
 Jewett V. Burroughs, 539 
 
 Jewett V. Felker, 341 
 
 Johns V.Whitley 297, 302, 318 
 
 Johnson V. Elliott, 50 
 
 Johnson v. FuUerton, 681 
 
 Johnson v. Harris, 933 
 
 Jolmson V. Lancaster, 817 
 
 Johnson v. Lawson, 488, 490 
 
 Johnson v. McMillan, 904 
 
 Johnson v. Nash, 916 
 
 Johnson v.Phillips, 652 
 
 Johnson v. Van Dyke 145 
 
 Johnson v. "Watts, 804 
 
 Johnston V. Irwin, 895 
 
 Johnston V. Johnston 497 
 
 Jones V. Chiles, 943 
 
 Jones V. Collins, 136 
 
 Jones V. Marsh, 285, 374 
 
 Jones V. Peterman, 345 
 
 Jones V. Lord Say and Sele 193 
 
 Jones V. Tatham, 466 
 
 Jones V. Thorn 293 
 
 Jordan V. Bradsliaw, 834 
 
 Jordan v. Mead 371 
 
 Jordan V. Sylvester, 482 
 
 Jordan V. Thornton, 933 
 
 Jordan V. Wilson 182 
 
 Joy V. Berdell, 66,75, 707 
 
 Judson V. Lake, 518 
 
 K. 
 
 Kahl V. Kraner, 4S7 
 
 Keechv.Hall 76, 543, 842 
 
 Keeler V. Davis 313, 316 
 
 Keene v. Angell , 596 
 
 Keenev. B&rnes, 739 
 
 Keene v, Cannovan, 70 
 
 Keenev. Deardou 78, 199, 319 
 
 Keese v. Wyrnan, 397 
 
 Keith V. Cheeney, 761 
 
 Kellogg V. Forsyth, 453, 710 
 
 Kellogg V. Kellogg, 202, 620 
 
 Kembrough v. Burton, 796 
 
 Kemp V. Comnronwealth 146 
 
 Kemp V. Derrett 242 
 
 Kenada V. Bogart, 563 
 
 Kenada V. Gardner 939 
 
 Kenesse V. Elliott, Sti 
 
 Kenrick V. Beauelerck, 193 
 
 Kentv. Haroourt, 874, 887 
 
 Kenyon v. Ashbridge, 487 
 
 Knox V. Pulliam, 831 
 
 Kerr v. Clark, 257 
 
 Kerr v. Lighten 69, 771 
 
 Ketohum v. Mighton 100 
 
 Kidd V. Dennison, 291 
 
 Kilburn v. Adams, 883 
 
 Kimball V. Lohnias, 144 
 
 Kincaidv. Meadows, 9J0, 942 
 
 Kincheloe v. Tracewells 783, 860 
 
 Kincheloe v. Berry, 386 
 
 King V. Catlin, 39 
 
 King V. Dickerman, 553 
 
 King V. Erswell, 491 
 
 King V. Firth, 492 
 
 King V. Hunt's Heirs, 823 
 
 King V. Smith 810, 917 
 
 Kingsdale v. Man, 690 
 
 Kinleside v. Harrison, 498 
 
 Kinne V. Beverly, 570 
 
 Kinne v. Kinne, 516 
 
 Klnne V. Whitmarsh, 507 
 
 Kinsey v. Sinsbaugh, 817, 820 
 
 Kip y. Norton 573, 574 
 
 PAGI!. 
 
 Kirk V. Carr vrA-^iV o^ 
 
 Kirk V. Smith, 113, 8bl, 875 
 
 Kirkland v. Thompson, 674, 67^ 
 
 Kirner v. Rankin's Heirs, 784 
 
 Kirtland v. Pownsett 47* 
 
 Kissam v. Hamilton, MO 
 
 Kite's Heirs v. Shrader, 507 
 
 Kittridge v. Locks and Canals, 481 
 
 Knappv.Pults 406, 407 
 
 Knipe v. Palmer, 20J 
 
 Knowlton v. Smith, 894 
 
 Knox V. Cleveland, 136 
 
 Kolb V. Bankhead, 8u6 
 
 Kouns V. Lowell, 370 
 
 Krlbbs V. Downing 61 
 
 Kyle V. Tubbs 804 
 
 L. 
 
 Lackland v. Badland 408 
 
 Ladd V. Ladd 49D 
 
 Laflin v. Harrington, 131 
 
 La Frorabois v. Jackson, 71, 854, 
 
 861, 863, 870, 879, 887, 944 
 
 Lahiffev. Smart, 933 
 
 Lambv. Coe 899 
 
 Lamb v. Foss, 861 
 
 Lanibert v. Blumenthal, 740 
 
 Lane v. Gould r 890 
 
 Lane v. Reynard, 74 
 
 Lane v. Schermerhorn, 202 
 
 Langford v. Love, 795 
 
 Langendyck v. Burhans 459, 840, 844 
 
 Langworth V. Close, 883 
 
 Lany v. Ropke, ~ 634 
 
 Larkin v. Avery, 339 
 
 Laugliton V.Atkins, 517 
 
 Laverty v. Moore, 940 
 
 Law V. Wallis 579 
 
 Law V. Wilson, 659 
 
 Lawrence V. Hunter, 903 
 
 Lawrence v. Wright, 617 
 
 Laydon v. Potter, 904 
 
 Layman v. Throp, 351 
 
 Layman v. Whltmg, 620 
 
 Layne v. Norris.. 148 
 
 Lea V. Polk Co. Copper Co., 873, 904 
 
 Learned v. Tallmadge, 924 
 
 Lee v. Consoly, 660 
 
 Lee V. Greenlee, 577 
 
 Lee V. Norris, 186 
 
 Lee V. Rowkeley 584 
 
 Leev. Salinas, ., 835 
 
 Lee V. Simonds, 761 
 
 Lee V. Summers, 761 
 
 Lee V. Toxscott, 821 
 
 Legg V. Berrian, 236 
 
 Leggett V. Boyd, 486 
 
 Leighton v. Leighton 593 
 
 Lelandv. Tousey, 816 
 
 Leonard V. Bryant 534 
 
 Leonard V. Leonard, 927 
 
 Le Roy v. Rogers, 145 
 
 Lesley v. Randolph, 213 
 
 Lester V. Garland, 210 
 
 Levasser v. Washburn, 145, 148 
 
 Levi V. Gadsby, 474 
 
 Lewis V. Barksdale, 933 
 
 Lewis V. Gogeuth, 74 
 
 Lewis V. Lewis, 509, 510 
 
 Lewis V. San Antonio, 836 
 
 Lexington v. Lindsey, t61 
 
 Lillle V. Wilson, 531 576 
 
 Lincoln v. Edgecomb, fill 
 
 Linden v. Hepburn, 331 
 
 Linden v. Norton, 110 US 
 
 Lindsey V, Clerk, ' ifn 
 
 Lindsey V. Llmburt, ' 175 
 
 Little V. Downing '" 114 
 
 Little V. Heaton, 254 
 
 Little V Magguier ""Zl, t74 
 
 Little V. Sibley, g5 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 PA.GE. 
 
 Livingston V. Peru Iron Co 865, 873, 
 
 884, 887, 937, 941 
 
 Livingston V. Proseiis, 919, 937 
 
 Livingston V. neynolds, 292 
 
 Livingston v. Stickles 281, 2iij 
 
 Livingston v. Tanner 323, 329, 813 
 
 Livingston v. Walker 73 
 
 Lloyd V. Orispe, 314 
 
 Loard v. Phillips 796 
 
 Lockwood V. Drake, 692 
 
 Lockwood V. "Wildman, 933 
 
 Lodge V. Patterson...... 476, 927 
 
 Logan V. Herren 244 
 
 Lowden V. Creyne, 291 
 
 Long V. Young 154 
 
 Longchamp v. Fish, 504 
 
 Long Island R. R. Co. v. Conklin, 570 
 
 Loud V. Darling, 933, 940 
 
 Louisville v. Gray, 594 
 
 Lounsbury V. Snyder, 219 
 
 Love V. Barber 836 
 
 Love V. Hillj.. 62 
 
 Lovelock V. Doucaster 449 
 
 Lovell's Ex'rs v. Mathews 529 
 
 Lovell V. Noble, 004 
 
 Lowrey v. Jenkins, 591 
 
 Lowthe V. Tomkins 176 
 
 Lozler V. N. Y. Central R. R. Co 38 
 
 Lucas V. Johnson, 42, 624 
 
 Luce V. Carley 879 
 
 Luokett V. Dunn, 161 
 
 Ludlow V. Barr, 685 
 
 Luvey v. Plgott 85 
 
 Luxmore v. Robson, 293 
 
 Lyle v. Rowlon, 856 
 
 Lyman v. Morse, 842 
 
 Lyman v. Mower, 50, 217, 543 
 
 Lynde v. Hugh, 281 
 
 Lynn's Lessee v. Downes, 398 
 
 Lyon V. Read, 322 
 
 Lyons v. Miller 394, 673, 677 
 
 M. 
 
 McAlister V. Mullanphy, 584 
 
 McAlister v. Williams, 74 
 
 MoArthur V. McArthur 100 
 
 McArtliur v. Porter, 580 
 
 McCall V. Neely 863 
 
 McCall V. Pryor 825 
 
 MoOall V. Vallandlngham, 526 
 
 McCanna v. Johnston, 676 
 
 McCarthy v. Poucher,: 895 
 
 McCrery V. Dickinson College, 917 
 
 McClay v. Benedict .' 448 
 
 McClung V. Ross 201, 537, 882 
 
 McCoole V. Smith 76 
 
 McCorry v. King's Heirs 305 
 
 McCormick v. Barnum, 578 
 
 McCormick v. Gonnell 179, 261, 345 
 
 McDonald v. Stewart^.. 370 
 
 McDowell V. Heath's Ex'rs., 855 
 
 McDowell V. Love, : 801 
 
 McEntire v. Brown, 127 
 
 MoGarvey V. Little, 767 
 
 McGee v. Gibson, 369 
 
 McGee v. Morgan, 875 
 
 McGlynn v. Moore, 277, 315 
 
 McHaffey v. Dobbs, 476 
 
 Molver v. Rogan, 857, 861 
 
 McKay v. Gloon 806 
 
 McKinney v. Kenny, 906 
 
 McLane v. White, 724 
 
 McLaren v. Murphy, 100 
 
 McLaren v. Wicker, 833 
 
 McLean v. McDonald, 40 
 
 McMichen v. Amos, 785 
 
 McMurray V. O'Neil, 785 
 
 McNamee v. Morehead, 900 
 
 MoRaee V.Smith, , 152 
 
 MoRae v. Williams, 895 
 
 McRaven v. McGuin 73 
 
 Macubiu v. Whitoroft 239 
 
 4 
 
 PAGE. 
 
 Maddock v. Bond, 868 
 
 Maddon v. White 226 
 
 Maglll v. Swearingen, 676 
 
 Magruder v. Peter -389, 580 
 
 Mam V. G.reen, 326 
 
 Maine Charity School v. Densmore 640 
 
 Malcolm v. Rogers, 201 
 
 Mallet V. Uncle Sam etc. Co 748 
 
 Manchester V. Dodridge, 351 
 
 Mankato V. Wlllard 728 
 
 Mann V. Montgomery, 401 
 
 Mann V. Rogers, 767 
 
 Manning v. Dove, 8U 
 
 Manning v. Warren, 131 
 
 Mantle V. Wellington, 387 
 
 Marcy v. Marcy, 482 
 
 M.arietta V. Emerson, 636 
 
 Markley v. Ames, 861 
 
 Marlinv.Willink 40, 59 
 
 Marsh V. Marsh 497 
 
 Marsh V. Weir, 872, 874 
 
 Marsliallv. Barr, 707 
 
 Marshall v. Duprey, 845 
 
 Marshall v. Shatter 764, 765, 768 
 
 Marshall v. Wood 414 
 
 Marstellerv. McLean, 933 
 
 Martierv. Thorp, 766 
 
 Martin V. Davis, 450 
 
 Martin V. Lake, 401, 634 
 
 Martin v.Bawlett, : 807, 808 
 
 Martin v. T' Vault, 760 
 
 Martin V. Weld, 100 
 
 Marvin v. Denniaon, 52, 413, 646 
 
 Mason V. Fox 579 
 
 Mason V. Hodgson 441, 457 
 
 Mason V. McLaughlin, 165 
 
 Mason v. Walker, 640 
 
 Massey v. Gardenhire, 833 
 
 Mastersonv. Cheek, 708 
 
 Masterson v. Hagan 790 
 
 Mather V. Chapman, 533 
 
 Matthews V. Demerritt 641 
 
 Matthews v. Lecompton, 739 
 
 Matthews V. Lowell, 321 
 
 Matthews v. Ward, 75, 192 
 
 Matthews v. Warner, 496 
 
 Mattox V. Helm, 369 
 
 Matures v. Westwood, 209 
 
 Maurice v. Mlllen, 317 
 
 Maury V. Smith, 68 
 
 May V. Slaughter, 942 
 
 Maynard v. Cable, 216 
 
 Mayo V Fletcher, 839 
 
 Mayor, etc., of N. Y. v. Campbell", 47 
 
 Mazyck V. Wight, 917 
 
 Means V. JPres. Church, 681 
 
 Medford V. Pratt, 883 
 
 Medlicott V. Brewster, 455 
 
 Medway V. Harbent, 596 
 
 Meehau V. Rourke, 512 
 
 Megargel V. Law, 59 
 
 Mein V. Rathbone, .*. 555 
 
 Meldoonv. Jarvis, 382 
 
 Melvin v. Locks and Canals, 84, 916 
 
 Meni v. Rathbone, 273 
 
 Mercer V. Doe, 698 
 
 Meridith v. Kennedy 939 
 
 Merretree v. Merrefree, 833 
 
 Merriam V. Hassam 115 
 
 Merrill v. Merrefree, 833 
 
 Merrill v. Smith 399 
 
 Metcalf V. Van Benthuysen, 570 
 
 Meyer v. Campbell, 739 
 
 Meyers v. Burns, 283 
 
 Meyers V. Hill 680 
 
 Michael V. Temple 501 
 
 Miles V. Caldwell 741 
 
 Milhollen v. Jones, 693 
 
 Millag V. Millag, 861 
 
 Millandon V. Ranney, 830 
 
 Miller V. Alexander, 8&5 
 
 Miller V. Ewing 118, 923 
 
 Miller V. HamWet 646 
 
XXVI 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Miller v. Piatt 903 
 
 Miller v. Shackleford, 398 
 
 Miller V. Shaw, 90(1 
 
 Miller V. Swils 817 
 
 Milliner V. Robinson, 887 
 
 Mills V. Graves, 7UJ> 
 
 Mills V. Van Voorhles f;S6 
 
 Minot V. Brooks, 90i 
 
 Mitchell V. Banatta; 783 
 
 Mitchell V. Cumniings, 368 
 
 Mitchell V. De Roche, 39 
 
 Mitchell V. Frudley 6S1 
 
 Mitchell V. Kirtland S32 
 
 Mitchell V. Lipe, 942 
 
 Mitchell V. Mitchell, 774, 77S, 775 
 
 Mitchell V. Reynolds, 255 
 
 Mofflt V. McDonald, 917 
 
 Monk V. Noyes, 283 
 
 Montague's Case, 297 
 
 Montgomery v. Craig, 223, 312 
 
 Moody V. Farr 75 
 
 Moody V. McKlne, 784 
 
 Moon V. Beasley, 214 
 
 Moore V. Armstrong, 933 
 
 Moore v. Beeseley, 347 
 
 Moore v. Brown, 874 
 
 Moore v. Burnett, 75 
 
 Moore v. Farrow 893 
 
 Moore v. Fursden 387 
 
 Moore v. Gilliam 40 
 
 Moore v. Goodright, 377 
 
 Moore v. Hawkins, 470 
 
 Moore v. Johnson, 861 
 
 Moore v. Moore ! 864 
 
 Mordecal v. Parker, 192 
 
 Moreau V. Detchemendy 739 
 
 Morehead v. Watklns, 219 
 
 Morlbrd V. Cook 678 
 
 Morgan v. Moore 53 
 
 Morgan v. Morgan, 484 
 
 Morrill V. Chapman, 767 
 
 Morris v. Barry, 583 
 
 Morris v. Burton, 363 
 
 Morris V. Davis, 493 
 
 Morris V. Keys, 514 
 
 Morris V. Thomas, 123 
 
 Morris v.Vandoren, 68, 123, 542 
 
 Morrison v. Kelley, 911 
 
 Morss V. Doe, 697 
 
 Morssv. Scott, 893, 942 
 
 Morss V. Shear, 766 
 
 Morton V. Yost, 941 
 
 Moseley v. Albany and N. R. R. Co.,... 630 
 
 Mosher V. Smith 65 
 
 Mosher v. Yost, 884 
 
 Mower V. Mower, 397 
 
 Mundy v. Monroe, 673 
 
 Munro V. Merchant 863, 902, 935 
 
 Munshown v. Patton, 869 
 
 Munson V. Munson, 396, 655 
 
 Murklns V. Blameuthal, 916 
 
 Murphy v. Barnett, 803 
 
 Murphy V. Orr, 708 
 
 Murphy V. Springer, 903 
 
 Murray V. Armstrong, 357 
 
 Murray V. Garretson, 403, 577 
 
 Murray V. Gooduews, 844 
 
 Murray V. Walker, 46, 565 
 
 Myers V. Burns^.. 283 
 
 Myerson v. Neff, 851 
 
 N 
 
 895 
 
 , 895 
 , 195 
 
 Naglee v. Albright, 
 
 Naherne v. Gardiner, 
 
 IS'apier's Lessee v. Simpson, 
 
 Nash V. Coates, 
 
 Neave v. Avery, 
 
 Neave V. Moss, 557 
 
 Nell V. Deens 577 
 
 Nelson V. McGifforts, 509 
 
 Nelson V. Reese 835 
 
 Nellis V. Lathrop, 319, 35i 
 
 PABi:. 
 
 Nepean V. Doe, 81 
 
 Newhamv. Cincinnati, o..^ 
 
 Newhouse V. Goodwm, 5U 
 
 Newklrk V. Ncwkirk, 256 
 
 Newman V. Lawless, .••"• if 
 
 Newman V. Rutter^. 807, «5 
 
 Newell V. Woodruff, 6o6, 882 
 
 Newton v. Clark , ooi 
 
 Newton V. McLean, o»o 
 
 Newton v. State Bank...... 8o4 
 
 New York, Mayor of v. Campbell 328 
 
 Nickells V. Atherstone, 321 
 
 Nlckellsv. Lewis '.SS 
 
 Nickerson v. Buck 498 
 
 NicoUv. Huntington,.....^.. .^..... 594 
 
 NicoU V. N. Y. and Erie R. R. Co.,. ... 18() 
 
 180, 8Ult 
 
 Nlcoll V. Walworth 196 
 
 Niederhans v. Hildt, ■■■.. 621 
 
 Nimmo's Ex'rs v. Commonwealth, 146 
 
 Nixon V. Porter, 830, 911 
 
 Noke V. Windham 696 
 
 Noland V. Seekright, 488, 591 
 
 Nolen V. Wilson '97 
 
 Nordingv. AUiston, 504 
 
 Norman v. Lee, »* 
 
 Norman V. Wells, :;■.■„—;;,■,•.;• ffi 
 
 Norris V. Morrill 248, 833, 334 
 
 North V. Barnum 115, 22.3, 312 
 
 Northern Railway Co. v. Canton Co.,.. /7-1 
 
 Northern Turnpike Co. v. Smith, 41 
 
 North Mo. R. R. Co. v. Akers, 140 
 
 Northrop v. Wright 479, 862, 868, 922 
 
 Norton v. Pettibone, 570 
 
 Norton V. Saunders, 942 
 
 Norvell v. Roake 850 
 
 Noyes v. Dyer, 113 
 
 0. 
 
 Oakapplev. Copons, 552 
 
 Dates V. Brydon, 459 
 
 O'Brien V. Galagher 518 
 
 Olcott V. Wood, 205 
 
 Olent V. Bowdine, 392 
 
 Oliver V. Williams, 817 
 
 Opdyke v. Stephens 475 
 
 Orbison V. Morrison, 905 
 
 Orton V. Noonan, 719, 721 
 
 Osborn V. Cook, 517 
 
 Osborn v. London Dock Co., 609 
 
 Osterhout V. Shoemaker, 923 
 
 Otis V. Abel, 531 
 
 Overfleia V. Christie 869, 917 
 
 Overing V. Russell, 108, 935 
 
 Owen V. Fowler 77 
 
 Owen V. Morton, 77 
 
 Owings V. Marshall, 401 
 
 Pacqnette v. Plckness, 720 
 
 Page V. Cole 69, 730 
 
 Paes V. Chadderdon 724 
 
 Paquelet v. Gauche 370 
 
 Pardee V. Lindley, 708 
 
 Park V. Castle, 331 
 
 Park V. Cochran, 910 
 
 Park V. Pratt, 945 
 
 Parker V. Beebe, 537 
 
 Parker V. Bowen 52."? 
 
 Parker v. Constable, 212, 226 
 
 Parker v. Framingham, 88S 
 
 Parker v. Hotchkiss, 885 
 
 Parker v. Manning 166 
 
 Parker v. Terrlll, -. 54 
 
 Parlin v. Haynes 641 
 
 Parmelee v. Os. and Syr. R. R. Co., 282, 301 
 
 Parsons V. Wells 52 
 
 Patridge v. Beere, 544 
 
 Patterson V. Brindle, 677 
 
 Patterson V. Eades, 375 
 
 Patton V.Adams 651 
 
INDEX TO CASES CITED. 
 
 XXVH 
 
 Patton V. Axley, 213 
 
 Pattou V. Cooper, 397 
 
 Patton V. Deshon .■ 208 
 
 Patton V. Tjillman, .■ 515 
 
 Paul V. Smiley 581 
 
 Pauling V. Barron 547 
 
 Payne v. Skinner 12S, 870 
 
 Payne V. Treadwell, 764 
 
 Payne v. York, 797 
 
 Payne, case of, 186 
 
 Payne, in Goods of. 502 
 
 Peaceable v. Troublesome, 409 
 
 Peaceable v. Watson, 483 
 
 Pearoe v. Ferris, 623 
 
 Peck V. Newton 43 
 
 Pedrick v. Searle, 910 
 
 Peebles v. Reading, 68, 59 
 
 Pendergast V. McCaslin, 699 
 
 Pendergrast v. Gullett 933 
 
 Pendrel V. Pendrel, 562 
 
 Penn V. Dlvellin, 217,345 
 
 Pennant's case 183, 273, 274, 282, 317 
 
 Pennock v. Freeman, 59 
 
 Penrose v. Griffith, 567 
 
 People V. Arnold, 105 
 
 People V. Bradt, 587 
 
 People V. Clark 107 
 
 People V. Denison, 105, 187 
 
 People V. Henry 848 
 
 People V. Leonard, 72 
 
 People V. Livingston, 187, 620, 902 
 
 People V. Mauran, 37 
 
 People V. Merritt, : 587 
 
 People V. New York, Mayor of 325, 624, 944 
 
 People V.' Robertson, 210, 330 
 
 People V. Ruukle, 624 
 
 People V. Sohakno, 225, 331 
 
 People V. Trinity Church, 105, 881 
 
 People V, Van Nostrand, 70 
 
 People V. Van Rensselaer, 47, 105, 187, 619 
 
 881 
 
 People V. Watertown, Assessors of 187 
 
 Pepper v. Haight, 945 
 
 Perkins V. Blood, 645 
 
 Perkins V. Raitt, 041 
 
 Perry V. Davis, 316 
 
 Perry V. Dover, 534 
 
 Perry v. Whipple, 645 
 
 Peto V.Cheney 377, 468 
 
 Petrie v. Shoemaker, 202 
 
 Pettingill V. Porter, 474 
 
 Petty V. Mailer, 790 
 
 Peyton V. Rose, 740 
 
 Peyton V. Stith, 882 
 
 Phares v. Leechman, 40 
 
 Phelon V. Kelley, 167, 200 
 
 Phelps V. Yeomans, 657 
 
 Phillips V, Bury, 464 
 
 Phillips V. Covert 213, 215, 226, 290 
 
 Phillips V. Doolittle, 261 
 
 Phillips V. Pierce 166, 189 
 
 Phlpps V. lugerson, 367 
 
 Phyfe V. Riley 41 
 
 Physic's appeal, 487 
 
 Phythian v. White 609 
 
 Pickering V. Pickett, 130 
 
 Pickett's Heirs v. Legerwood, 402 
 
 Plckard V. Perley, 233 
 
 Pierce V. Browji, 61, 646 
 
 Pierce v. Coldeu, 623 
 
 Pierce v. Tattle, 566 
 
 Pierson V. Doe, 65, 351, 700 
 
 Pillow V. Roberts, 874 
 
 Pinkney V. Burrage i923 
 
 Piper V. Richardson, 117, 934 
 
 Pipher V. Lodge, 123, 576 
 
 Pitkin V. Law, 66, 707 
 
 Pitts V. Wilder, 670 
 
 Pleake V. Chambers, 914 
 
 Pleasant V. Benson, 234 
 
 Plumerv. Lane; 63 
 
 Poignard V. Smith, 84, 916 
 
 Polk V. Marchittl 284 
 
 PAGE. 
 
 Pollock V. Malson, 708 
 
 Pool V. Richardson, 498 
 
 Poor V. Horton, 939 
 
 Pope V. Pendergast, 472 
 
 Porter V. Mathews, 6S2 
 
 Porter v. Robinson, 448, 450 
 
 Porter V. Seeley, 548 
 
 Post V. Post, 823 
 
 Poston V. Henry, 8-18 
 
 Poston V. Jones, 806, 815 
 
 Pottery. Knowles, 72 
 
 Pottery. Titoomb 516 
 
 Potts Lessee v. Gilbert, 869, 904, 912 
 
 Powell y. Harrison, 871 
 
 Powell y. Williams 5(7 
 
 Powers y. Ingraham 40, 558 
 
 Pratt V. Battles 115 
 
 Pray v. Pierce, 909 
 
 Prayv. Bennington Bank, 51, 212 
 
 Pray V. Phillips 796 
 
 Prentiss v. Brown, 717 
 
 Prentissv. Wilson, 704 
 
 Presbrey V. Williams, 210 
 
 Presbyterian Cong. v. Johnson, 57, 196 
 
 Prescott V. Elms 336 
 
 Prescott V. Jones, 816 
 
 Prescott y. Nlven 82, 904, 927 
 
 Preston's Heirs v. Bowman, 74 
 
 Prevost's Heirs v. Johnson, 894 
 
 Price V. Carter, 461 
 
 Prickett V. Ritter, 353 
 
 Prindle V. Anderson, 244, 248, 274 
 
 Prior V, Langley, 235 
 
 Proctor V. Keith 301 
 
 Propagation Soc. y. Pawlett, 826, 853 
 
 Proprietors Kennebec Purchase v. 
 
 Stringer, 84 
 
 Proudhomme V. Dennison, 163 
 
 Pugh V. Duke of Leeds, 398 
 
 Pulliam V. Abe, 786 
 
 Pultney V. Warren, 841 
 
 PuUen V. Hutchinson 5U 
 
 Pullen V. Reynolds, 622 
 
 Purcell V. Wilson, 785 
 
 Purev. Sturdy, 268 
 
 Putnam V. Bowker, SS3 
 
 Putnam y. Van Buren, 631) 
 
 R 
 
 Radcliff V. Chaplin 493 
 
 Rains V. MoWills 833 
 
 Ramble V. Bell 40 
 
 Ramble v. Tryon 593 
 
 Rancliffv. Parker 499 
 
 Rand v. Robinson, / 53 
 
 Randv. Sherman, 643 
 
 Randall v. Rich 335 
 
 Randebaugh v. Shelly 520 
 
 RatclilTs case 173 
 
 Rawley v. Doe 461 
 
 Rawson V. Parsons, 693 
 
 Ray V. Baker, 861 
 
 Raymond v. Holden, 923 
 
 Raynor v. Timerson, 570 
 
 Reading v. Royston, 858 
 
 Records v. Melson 124 
 
 Rector V. Gainse 834 
 
 Redfern V. Redfern, 707 
 
 Redfleld v. Utica and Syracuse R. R, 
 
 Co., ., 39, 615 
 
 Redwood V. Riddeck, 146 
 
 Reedv. Calderwood, 767 
 
 Reed v. Eiforts, 809 
 
 Reed v. Farr, 317 
 
 Reed v. Field,..; 895 
 
 Reed v. Murray, 59 
 
 Reed V. Prosser, 4S9 
 
 Reedv. Reed, 331, 553 
 
 Reedv. Shergold, 496 
 
 Reed v. Shipley 51 
 
 Reedv. Thompson, 861 
 
 Rees V. Allen 192 
 
 Beesv. Chicago city, ; 709 
 
XXYIU 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Eees V. King 265, 308 
 
 Eeginav. Mansfield 493 
 
 Remsen v. Brinkerhoff, 509 
 
 Eennle V. Robinson, 550 
 
 Renwiolc v. Renwicli, 807 
 
 Eequa v. Holmes, 941 
 
 Eex V. Axbridge, 858 
 
 Rex V. Glossop, 474 
 
 Eex V. Kea 561 
 
 Eex V. Luffl, 561 
 
 Eex V. Old Ariesford, 43 
 
 Eex V. Smith 379, 380 
 
 Eeynolds, Ex parte 589 
 
 Eeynoldsv. Pitt, 294, 318 
 
 Eeynolds v. Shirley, 520 
 
 Eicard V. 'Williams, 882 
 
 Rice V. Lowan, 563 
 
 Eich V. Keyser, 69 315 
 
 Elchards V. Eichards, 485 
 
 Eicliardson v. Harvey 818 
 
 Eicliardson v. Lengridge 212 
 
 Rlciiardson v. Stewart's Lessee, 593 
 
 Richardson v. ■Williamson, 145 
 
 Richter V. Riley, 542 
 
 Riddle V. Findley's Lessee, 401 
 
 Ridenv. Prien, 933 
 
 Eidgeleyy. Stillwell, 213 3.57 
 
 Eighty. Beard, 216, 222 
 
 Eight y. Baclinell, 546 
 
 Eighty, Cuthell, ,. 229, 552 
 
 Eighty. Darby 213,- 241, 216 
 
 Right V. Price 497 
 
 Right V. Roe, 419 
 
 Right y. Smith 194 
 
 Riglity. Wrong, 414 417 
 
 Eigley y. Lee, 584 
 
 Eileyy. Griffin, 821 
 
 Eileyv. Smith, 652 
 
 Eimmer y. Long Wharf, 84 
 
 Eoberts y. Hayward, 237 
 
 Eobertson v. Crawford, 487 
 
 Robertson y. Morgan, 576 588 
 
 Robeson v. Campbell 378 
 
 Robie y. Flanders, 114 
 
 Robinoe y. Doe, 65, 70, 698 
 
 Robins y. Coryell, 507 
 
 Robinson y. Campbell, 75 
 
 Robinson V. Douglas, 894 
 
 Eoblnsou V. Lake 138 900 
 
 Robinson y. Roberts, ' 58 
 
 Robinson v. Sweet, 909 
 
 Rochell V. Holmes, 152 808 
 
 Rockwell V. Bradlej' ' leo 
 
 Rodgers v. Arthur 5Si' 626 
 
 Rodgers v. Burnett, 401 
 
 Rodgers v. Diamond, ' 527 
 
 Rodgers v. Eagle Fire Ins. Co., 515 
 
 Rodgers v. Hillhouse, 861 
 
 Rodgers v. Moore, 670 
 
 Rodgers v. Pitcher 176 
 
 Eodgers V. Stevens, 521 
 
 Eodgers v. Wallace, 150 
 
 Eoe V. Archbishop of York, " 332 
 
 Roe v. Davis, 260, 263, 267, 549, 551 
 
 Roe V. Dawson, 539 
 
 Roe v. Doe 154, 399, 404, 414, 591,' 
 
 816, 818, 819, 821 
 
 Roe y. Ellis, 493 
 
 Roe y. Galliers 256' 258 
 
 Roe y. Harrison, 273, 281,' 316 
 
 Eoe V. Harvey, 72 
 
 Roe V. Hayley ', 229 
 
 Roe V. Hersey,. 
 Roe y. Hiilier,.. 
 Roe V. Hussey, 
 
 Roe y. Lord, 
 
 Eoe V. Lowe,. 
 
 Roe V. Paine "„\, 294 
 
 Roe V.Parker, 493 
 
 Roe y. Pierce, 233,' 236 
 
 Roe V. Power, 583 
 
 Roe V. Prideaux, '. 223 
 
 Roe V.Ross 698 
 
 Roe y. Street, 212 
 
 Roev. U. S. Bank, 591 
 
 Roe V. Ward 207, 246 
 
 Roe V. Wiggs, 234, 412 
 
 Roger V. Benlow 895, 900 
 
 RoDoboth V. Hunt, 64 
 
 Rolfe V. Harris, 294 
 
 Ronald V. Barkley, 176 
 
 Rose V. Clark, 487 
 
 Roseboom v. Van Vechton 884 
 
 Ross y. Garrison 168, 223, 369 
 
 Ross V. Mcjenkins, 174 
 
 Eosseel V. Jarvis 311 
 
 Eowan v. Kelsey, 37 
 
 Eowan v. Lytle, 222, 322, 325 
 
 Eozierz y. van Dorn, 70, 731 
 
 Euddon y. McDonald, 608 
 
 Eugan's Lessee v. Phillips, 403 
 
 Rumney v. Eves, 493 
 
 Rupert v. Mark, 708 
 
 Russell T. Defrance, 740 
 
 Russell v. Erdin, 825 
 
 Russell y. Fabyan 312, 333 
 
 Russell v. Mahony, 648 
 
 Eussell V. Schuyler, 487 
 
 Eussell V. Stanton, 817 
 
 Eussell y. Titus 550 
 
 Rutherford y. Rutherford, 508 
 
 Ryerss v. Rippey, 633 
 
 S. 
 
 Saffbrdv. Hynds, 566 
 
 St. John V. Bumpstead, 41, 474 
 
 St. John V. Northrop, 616 
 
 St. John V. Pierce, 614, 615, 627 
 
 St. John y. West, 631 
 
 St. Louis V. Gorman 894 
 
 St. Louis University y. McCune, 907 
 
 St. Saviour's Church v. Smith, 
 
 Salmons v. Davis 
 
 Salmon v. Simonds '.'..„'.'.'., 
 
 Saltmarsh y. Crommelin, 
 
 Saltonstallv. White, 379 
 
 Sam Slicli, 
 
 Sanders y. Groves ....!.. 
 
 Sanders v. Leavey, 
 
 Sanderson v. Price, 
 
 Sanford v. Button, 9J2 
 
 Sanford v. Harvey, ' 
 
 Savage V. Dent, .: ' 374 
 
 Savage v. Dooley, ' '" 66* 
 
 Savory, In re -. ' 
 
 Sawyer y. Kendall, 
 
 Sawyer V. Sliannon 
 
 Saxony. Barksdale, 
 
 Scales V. Coclcrill, 
 
 Schauber v. Jackson!'!.'.'!!!.'.'.' 78" 
 
 Schemerhorn v. Buell " ' 
 
 Schletrelin v. Carpenter',"!!!!!!!'.'.' 
 
 Sohraolt v Zubler 
 
 Schultz v. Arnot "! 
 
 Schultz V. Fitzwater, ... 
 
 Schuylkill Navigation Co. v. Fari-' 
 Schuyler v. Leggett, . . 
 
 Schuyler y. Marsh 
 
 t<cott V. Bealle 
 
 Scott V. Ollabaugh 
 
 Sear v. Pestana, ... 
 
 Sears v. Dixon, , 
 
 See V. Greenlee, !.! 
 
 Sechrist y. Edwards . 
 Seever y. McLees, ... 
 
 Sellick V. Adams 
 
 Sellick y. Starr, ...... 
 
 Semayne's Case, 
 
 Sensory. Bower, ... 
 
 Senterfit V. Reynolds, .!!!!!!'! 
 
 Seymour v. Van Wyck 
 
 Shaokleford y. Bailey 
 
 Shadwell, Goods of, . ' 
 
 Shaefer v. Kreitzer, 
 
 Shannon v. Kennedy, 
 
 393, 
 
 923 
 764 
 156 
 448 
 928 
 943 
 617 
 842 
 933 
 336 
 411 
 548 
 601 
 916 
 874 
 152 
 917 
 564 
 290 
 321 
 911 
 
 , rxr 
 
 . 917 
 .58 
 
 . 219 
 621 
 .580 
 543 
 
 . 767 
 . 781 
 . 525 
 . 353 
 , 205 
 , 9t5 
 . 590 
 , 487 
 . 811 
 . 510 
 . 133 
 . 502 
 . 563 
 , 914 
 
INDEX TO CASES CITED. 
 
 XXIX 
 
 Shannon v. Taylor 
 
 Bharp v. Brandon, •. 
 
 Sharp V. lugraham, iiUl), 
 
 iShaw V. Hayard, 
 
 Shaw V. Hersey, 
 
 Shaw V. McGraw, 62a, 
 
 Shaw V. McMaren 
 
 Sliaw V. Nicholay 
 
 Slieafe v. Rowe, 
 
 Shearer v. Clay, 
 
 Sheets V. Selden's Lessee, 211, 
 
 Sheldon v. Smith 
 
 Sheldon v. VanSlyke, 
 
 Shelly V. Wright, ....; 
 
 Shelton v. Carroll, 
 
 Sliephard v. Rogers, 
 
 Sliephard v. Spauldiug 
 
 Sherlock v. Thayer, 
 
 Sherman v. Ohamplaln Tr. Co., 
 
 Sherry v. Denn, 
 
 Sherry v. Frecking, 
 
 Shettleworth v. Hughey,_ 
 
 Shields v. Miller, ; 
 
 Shinburn v. De Cordova 
 
 Sliipley V. Alexander, 
 
 Shirley v. Newman, 242, 
 
 Shoemaker v. Huffnagle 
 
 Slioenburger v. Hay, 
 
 Shores v. Glascock, 
 
 Short V. King, 
 
 Shortall v. Hinckley, 
 
 .Showers v. Emery 
 
 Shrider v. Nargan, 
 
 Shultz V. Arnot 
 
 Shumway V. Holbrook, 481, 
 
 Shumway v. Phillips 
 
 Sietzanger v. Ridgway, 
 
 Sigbee v. Van Riper 392, 
 
 Siglar V. Malone, 
 
 Siglar V. Van Riper, 
 
 Simmons v. Brown, 55, 
 
 Simmons v. Lane 
 
 Sims V. Eastland 
 
 Sims V. Hampton, 
 
 Sims V. Irvine, 
 
 Sims V. Marshall 
 
 Sims V. Thompson 
 
 Simpson v. Hall 
 
 Simpson v. McLemon, 
 
 Simpson v. Shannon, 584, 
 
 Singleton v. Singleton, 
 
 Skipper V. Lennon, 802, 
 
 Skyle V. King 386, 893, 
 
 Slade's Case, 
 
 Slaney v. wade, 
 
 Slater v. Rawson, 
 
 Small V. Cole, 
 
 Small V. Proctor, 
 
 Small V. Small, 
 
 Smarth v. Williams 171, 
 
 Smartley v. Hendon, ^ 
 
 Smith V. Atkins, 
 
 Smith V. Barnardlstan, 
 
 Smith V. Benson, 
 
 Smith V. Blackham, 
 
 Smith V. Blaisdell 
 
 Smith V. Burtls 83, 881, 884, 900, 
 
 Smith V. Chapin, 
 
 Smith V. Chapman, 
 
 Smith V. Chatham 
 
 Smith V. Clarke, 
 
 Smith V, Crabb, 
 
 Smith V. Devlin, j 
 
 Smith V. Bewey, 
 
 Smith V. Doe, 
 
 Smith V. Garza 
 
 Smith V. Hornbach, 5SB, 
 
 Smith V. Hosmer, 114, 
 
 Smith V. Hurst, 
 
 Smith V. Liorrillard, 72, 80, 
 
 Smith V. McCann, 531, 
 
 Smith V. Miller, 
 
 Smith V. Mitchell 873, 805, 
 
 PAGE. 
 
 Smith V. Morrow, 908 
 
 Smith V. Niver, 321 
 
 Smith V. Nowell, 893 
 
 Smith V. Sherwood, 637 
 
 Smith V. Shuler 169 
 
 Smith V. Spooner, 264 
 
 Smith V. Steele 520 
 
 Smith V. Vincent, 548, 8J7 
 
 Smith V. Whitbeck 273, 655 
 
 Smith, Goods of, 502 
 
 Smyles V. Hastings, 887 
 
 Snell V. Bryer, 502 
 
 Snowv. Phillips 539 
 
 Snyder v. Raab 740 
 
 Snyder v. Warren 210 
 
 Somers v. Skinner 650, 938 
 
 Sorber V. Willing, 895 
 
 South School District v. Blakeslee 884 
 
 SowderV. McMillan's Heirs, 398 
 
 Spear V. Ralph, 115 
 
 Speed V. Braxdell, 791 
 
 Spencer's Case, 181 
 
 Sperry v. Sperry 323 
 
 Spottswood V. Dandridge 146 
 
 Spriggsv. Moale 774 
 
 Sprightly v. Dunch, 424 
 
 Springly V. Shields 40 
 
 Springstead v. Scliemerhorn, 318, 323 
 
 Squires v. Broome 0. P., 412 
 
 Squires v. Riggs, 805 
 
 Stack V. Brown, 718 
 
 Staokberger v. Morielle, 350 
 
 Staokhouse V. Doe, 698 
 
 Stackpole v. Hcaly, 39 
 
 Stafford v. Wilcox, 528 
 
 Stanford v. Mangin, 816 
 
 Stanley v. Towgood, 283 
 
 Stanley V. White 473 
 
 Staring v. Bowen, 499 
 
 Stark V. Starr, 761 
 
 Starr v. Peck, 487 
 
 State V. Clark, 128 
 
 State V. Pish 725 
 
 State V. Roswell, 4i8 
 
 State V. State Bank, 75 
 
 State V. Swope, 127 
 
 State Bank v. Babro 810 
 
 State Bank v. Bridges 810 
 
 Stead's Executors -v. Course, 537 
 
 Stearns v. Hendersof, * 
 
 Stebbins V. Grout 598 
 
 Stebblns v. Guthrie, 748 
 
 Stedman v. Fortune, 40 
 
 Stedman v. Hilliard, 809 
 
 Stedman v. Mcintosh, 274 
 
 Stedman v. Mclntyre, 249 
 
 Stern v. Sprague 559 
 
 Stevens v. Grifflth, 472 
 
 Stevens v. HoUister, 900 
 
 Stevens v. Rhinelander 886 
 
 Stevenson v. Lambard, 209 
 
 Stevenson v. Ross, 640 
 
 Steward v. Harding 338 
 
 Stewart V. Coalter, 414, 783 
 
 Stewart V. Crosby, 49 
 
 Stewart v. Dent, 742 
 
 Stewart v. Dutton, 70S 
 
 Stewart v. Hoag, 687 
 
 Stewart V. Sellman 125 
 
 Stewart v. Sweeney 936 
 
 Stlnson V. Ross, 49 
 
 Stoddard v. Chambers 74 
 
 Stokes V. McAllister, 41 
 
 Stone, Ex parte, 598 
 
 Stow V. Russell, 708 
 
 Stowel V. Ld. Zouch, 866, 931 
 
 Stradwlck v. Shaw, 805 
 
 Straus V. Harris 651 
 
 Stredde v^aroui 354 
 
 Strong V. Sarlleld 179 
 
 Strougv. Hunt 647 
 
 Strother v. Lucas '742 
 
 Stump V. Henry, 123 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 PAGE. 
 
 Stuyresant V. Davis, 282 
 
 Stuj^vesant v. Dunham, 898 
 
 Sullivan v. Enders, 369 
 
 Sullivan V. Stradllng 166 
 
 Sumner V. Stevens, 84 
 
 Sumner v. Tileston, 883 
 
 Sutton V. Callioun 538 
 
 Sutton V. McLeod 816, 871 
 
 Swayze v. Burke 44, 58 
 
 Sweat V. Arrington, 150 
 
 Swegest V. Tliomas, 547 
 
 Sweit V. Poor, a38 
 
 Sykes v. , 247 
 
 Symonds v. Page 850 
 
 Sypher v. McHenry 731 
 
 T. 
 
 Tabener v. Brintnell, .' 929 
 
 Talt v. Daggett, 120 
 
 Talbot V. Wbeeler 395 
 
 Tallman V. Ely, 67, 718 
 
 Tallmau V. "White 533 
 
 Tappan V. Tappan, 114 
 
 Tapscottv. Cobbs, 72, 784 
 
 Tarrant v. Ware, 512 
 
 Tasker's Lessee v. "Wliittington,« 861 
 
 Tatil V. Campbell, 168 
 
 Taylor v. Abbott, 680 
 
 Taylor V. Cole 176 
 
 Taylor v. Draing, 501 
 
 Taylor v. Horde '. 80, 83, 855 
 
 Taylor v. Jefts, 411 
 
 Taylor V. King, 192 
 
 Taylor V. Shum 209 
 
 Taylor v. "Whiting's Heirs 386 
 
 Taylor V. "Wilbur 584 
 
 Taylor, In Matter of, 487 
 
 Tebbetts v. Estes, 641 
 
 Tett'tv. McGlll 173 
 
 Tenny V. Moody 260, 665 
 
 Terrett v. Taylor, 667 
 
 Tevis V. Pitcher 623 
 
 Thaller v. Brand 499 
 
 Thatcher v. Powell, 637 
 
 Thayer V. Barton 183, 276 
 
 Thayer v. Eaton, 277 
 
 Thayer v. Thayer, 499 
 
 Thiebaud V. Sebastian, 521 
 
 Thoma»v. Cook, 321 
 
 Thomas v. Gulp, 893 
 
 Thomas v. Garvin, 927 
 
 Thomas v. Head 401 
 
 Thomas v. Marshfleld, 883 
 
 Thomas V, Thomas 552 
 
 Thomas v. White 161 
 
 Thompson v. Adams, 60 
 
 Thompson V. Blair, 150 
 
 Thompson V. Cragg, 895 
 
 Thompson v. Craig, 934 
 
 Thompson v. GaiUard „.. 452, 933 
 
 Thompson V. Gilman 647 
 
 Thompson V. Lyon 739 
 
 Thompson V. Lynch, 909 
 
 Thompson V. Richards, 819 
 
 Thompson V. Sherrard 635 
 
 Thompson v. Wheatley, 829 
 
 Thornton v. Boyden, 708 
 
 Thornton v. Edwards, 569 
 
 Thornton v. Thornton, 168 
 
 Tlirockmorton v. Cooper's Lessee, 533 
 
 Throgmorton v. Smith 695 
 
 Thrustout V. Bidwell, 577 
 
 Thrusiout V. Foot, 588 
 
 Thrustout V. Gray, 577 
 
 Thrustout V. Holdfast 596 
 
 Thrustout V. Nixon 454 
 
 Tiirustout V. Troublesome, ^ 597 
 
 Thunder v. Belcher 170, 21«2o, 514, 548 
 
 Thurber v. Belcher, .". 213 
 
 Thurman v. Cameron, 872 
 
 Thyn v. Thyn, 42 
 
 Tibeau v.Tibeau 738 
 
 PAGE. 
 
 Tilghman v. Little, 550, 707 
 
 Tillotson V. Doe, 223 
 
 TUson V. Thompson, US 
 
 Tilts V. Foster 487 
 
 Timmins v. Bawlinson, 212 
 
 Tlmmins v. Bobinson, 223 
 
 Todv. Earl of Winchelsea, 497, 601 
 
 Tolman v. Emerson, 638 
 
 TompV.hs V. White 624 
 
 Torry v. Beardsley, 663 
 
 Torry V. Wallis, 208 
 
 Towle V. Ayer, 86 
 
 Towlev. Palmer, 886 
 
 Towle v.Tolan 886 
 
 Towne v. Campbell 243 
 
 Townshend v. Wesson 529 
 
 Townshend v. Townshend 617 
 
 Trabue v. Kellar 839 
 
 Traphagan v. Traphagan 566 
 
 Trapnall v. Burton, 164 
 
 Trask v. Wheeler, 299 
 
 Treport's Case, 386, 475 
 
 Tribe v. Tribe, 501 
 
 Tripe v.Macey 643 
 
 Trotter V. Cassady, 893, 909 
 
 Troublesome v. Estill 450 
 
 Troutman v. Vernon, 791 
 
 Truax V. Thorn 943 
 
 Truer V. Bowman, 440 
 
 Tryon V. Carlin 580 
 
 Tudor V. Tudor 525 
 
 Tupper V. Doe 415 
 
 Turner v. Aldridge, 72 
 
 Turnery. Barnaby, 578 
 
 Turner v. Debell, 161 
 
 Turner v. Reynolds, 74 
 
 Turner V. Wartington, 401 
 
 Turney V. Chamberlain 900 
 
 Turnipseed v. Beesley 810 
 
 Turnstall V. Brend, 382, 384 
 
 Tush-Ho-Yo-Tubby V. Bar 157 
 
 Tusselman v. Worthlngton, .".... 312 
 
 Tustin V. Paught, 766 
 
 Tuttle V. Jackson 943 
 
 Tuttle V. La,ue, 640 
 
 Tuttle V. Reynolds, 223, 334 
 
 Tyler v. Canaday, 628 
 
 Tyler V. Heidorn 330, 880 
 
 Tyson v. Passmore 59 
 
 U. 
 
 Underwood ads. Jackson, 460 
 
 United States v. Arredondo, 861 
 
 Upchurcli V. Upchurch, 525 
 
 Utterson v. Vernon, 843 
 
 V. 
 
 Valentine v. Northrop 42, 478, 621 
 
 Van Allen v. Rogers 671, 838, 840 
 
 Van Alstyne v. Spraker, 5S0 
 
 Van Auken's case 498 
 
 Van Bureu V. Cockburn, 622 
 
 Vance v. Cong. Township 699 
 
 Vance V. Olinger -^ 
 
 Vanderpool v. Van Valkenburgh, 506, 513 
 Van Deuzen v. Church at Port Edward 42 
 
 Vandolf V. Otis, 76I 
 
 Van Dyck v. Van Buren, .'."... 481 
 
 Van Hanswyck v. Wiese 507 
 
 Van Holsen V. Benham, 937 
 
 Van Home v. Everson, !!!!!" 623 
 
 Van Home v. Fonda, 920 925 
 
 Van Olman v. Spaftbrd, ' 731 
 
 Van Rensselaer v. Ball, "" 330 
 
 Van Rensselaer v. Hays 3oT 828 
 
 Van Rensselaer v. Jewett,.. 47, 184 26b' 555 
 Van Rensselaer v. Pennimau, . ' 320 
 
 Van Rensselaer V. Slingerland,, . 47' 330 
 
 Van Rensselaer V. Smith, 47 208' 328 
 
 Van Rensselaer v. Snyder ' 47' 327 
 Van Rhyu v. Viuoeut's Exrs.',. I52' 855 
 
INDEX TO CASES CITED. 
 
 XXXI 
 
 PAGE. 
 
 Van Vent V. Olin 748 
 
 Van Winkle v. Hinokle, 553 
 
 Varrick V. Jackson, 83 
 
 Varick v. Tallman, 538 
 
 Vaughn v. Bacon 927 
 
 Vaughn, Ex parte 318 
 
 Vermont University v. Joslyn, 945 
 
 Verner v. Underwood, 471 
 
 Vernon V. Smith 181, 182 
 
 Vicars v. Heydon, 403 
 
 Vincent v. Hoff, 59 
 
 Violette v. Violette, 943 
 
 Vivyan V. Arthur 183, 297 
 
 Voltz V. Newbut 698 
 
 Vooght V. Winch, 845 
 
 Voorhies v. Childs, ; 623 
 
 Voorhies V. Voorhies, 613 
 
 Voorhies v. "White's Heirs, 161 
 
 Vowles V. Young 490 
 
 Vreelandv. Ryerson, 662 
 
 Vrooman V. Jones, 630 
 
 Vrooman V. Shepherd 876, 924 
 
 W. 
 
 "Wade V. Cole 173 
 
 "Wade V. Johnson, 933 
 
 "Wade V. Lindsey, 16, 938 
 
 Wadman v. Calcraft 268 
 
 "Wager v. Troy Union R. R. Co 38 
 
 "Wakeley V. Delaplaine, 720 
 
 "Wakeley v. "Warren, 398 
 
 "Wakeman v. Banks, 169 
 
 "Walden v. Craig, 402 
 
 "Walden v. Gratz, 913 
 
 "Waldorph V. Bortle, 621 
 
 "Wales V. Smith, 873 
 
 "Walker V. Engler, 277 
 
 "Walker V. Mitchell 790 
 
 "Walker V. Sharpe 336 
 
 "Walker v. "Wilson, 85 
 
 "Walker's Lessee v.XIoulter, ;. 74 
 
 "Wallace v. Duffleld*. 855 
 
 "Wallace v. McCoUough 365 
 
 "Wallace V. Miner, 542 
 
 "Wallingford V. Hearl 118 
 
 "Wallison v. Watkins 223 
 
 "Wallon V. Huff, .: 795 
 
 "Walter v. Lookwood, 617 
 
 "Wamburzer v. Kennedy, 152 
 
 "Ward V. Bartholomew, 87, 944 
 
 "Ward V. Petifer 39 
 
 "Warden v. Jackson, 187 
 
 "Wardsworthville School v. Meetz, 812 
 
 "Warner V. Crew, 731 
 
 "Warner v. Kelly 372 
 
 "Warner V. Kennedy 631 
 
 "Warner V. NeUegar, 615, 617 
 
 "Washington Bank v.Hupp, 786 
 
 "Waterbury v. Moran, 365 
 
 "Waters V. Harrison, 450, 452, 453 
 
 Wathen v. English 201 
 
 Watkins V. Holman 826, 923 
 
 Watrous v. Southworth 84, 894 
 
 Watson V. N. Y. C. R. R. Co 886 
 
 Watson V. Watson 121 
 
 Watts V. Griswold 891 
 
 Way V. Lyon 350 
 
 Weakley V. Bucknell 220 
 
 Weatherhead V. Sewell, 525 
 
 Webb V. Russell, 183, 296 
 
 Webb V. Sturtevant 904 
 
 Webb V. Thompson, 945 
 
 Webster V. Vandewater 53, 651 
 
 Webster V. Van Steenburgh, 939 
 
 Webster V. Webster, 60 
 
 Weisbrod v. Chicago & N. W. R. R. Co., 68 
 
 Weisinger v. Murphy 159 
 
 Welch V. Silliman .'. £00 
 
 Wellington v. Gale .'. S34 
 
 Wells V. Masterson, 725 
 
 Wells V. Prince 118 
 
 Wells V. Rayland 933 
 
 PAQE. 
 
 Wendell V. Monlton, 043 
 
 Wendell v. People 105 
 
 West V. Hughes, 840, 844 
 
 West V. Strode, 676 
 
 West, Goods of, 497 
 
 Western Bank v. Kyle, 301 
 
 Weston V. Hunt, 537 
 
 Weston V. Spiller, 652 
 
 Weyand v. Tipton : 538 
 
 Wharton V. Clay 411, 433 
 
 Whately V. Doe, 820 
 
 Whateley V. Newson, 822 
 
 Wheeler v. Bates 88 
 
 Wheeler v. Montifore 171 
 
 Wheeler v. Moody 165, 911 
 
 Wheeler v. Toulson, 39 
 
 Wheelwright V. Freeman, 63 
 
 Whidden v. Proctor, 85 
 
 White V. British Museum, 5U 
 
 White V. Kyle'sHeirs, 593 
 
 White V. Parker 193 
 
 White V. Pickering 414 
 
 White ads. Reid, 809 
 
 "White V. St. Guirons 397 
 
 White V. White, 87 
 
 White, Goods of, 502 
 
 Whitehead V. CllfTord 322 
 
 Whiting V. Whiting 883 
 
 Whitlock V. Baker 487 
 
 Whitney V. Bright 73, 879 
 
 Whitney v. French 116 
 
 "Whitney V. Marshall, : 136 
 
 Whitney V. Meyers, 321 
 
 Whitney V. Richardson 647 
 
 Whltraeu v. Symonds 251 
 
 Whitside V. Jackson 216 
 
 Whittemore v. Bean 936 
 
 Whittington v. Christian 383, 385 
 
 Whittington v. Wright 900 
 
 Whittlesy V. Starr, 533 
 
 Wlckham v. Conklin 102, 943 
 
 Wickliffe V. Enson ; 910 
 
 Wight V. Wight 611, 521 
 
 Wilber v. Anderson 904 
 
 Wilber V. Paine 3-16 
 
 Wilcox V. Jackson, 712 
 
 Wilcox V. Wood 210 
 
 Wild's Lessee v. Serpen, 312 
 
 Wilder V. Houghton, 839 
 
 Wilkinson v. Colby, 237 
 
 Wilkinson v. Scott, 567 
 
 Wllklow V. Lane, 43, 881 
 
 Willard V. Tallman 184 
 
 Williams V. Amory, 534 
 
 Williams v. Baker 946 
 
 Williams V. Bennett 217, 543 
 
 Williams V. Brewerton 452 
 
 Williams V. Bunton 707, 7119 
 
 Williams v. Cash 816 
 
 Williams V. Denar 357 
 
 Williamsv. First Pr. Ch 126 
 
 "Williams v. Hartshorn, 75 
 
 Williams v. Jackson, 937 
 
 Williams V. McAlibj-, 917 
 
 Williams V. McNee 809 
 
 Williams v. Oppelt 434 
 
 Williams v. Smith 237 
 
 Williams v. Potter 47, 327 
 
 "Williams v. Thomas 858 
 
 "Williamson v. Simpson, 165 
 
 Willings V. Brown 44, 58 
 
 Willis V. Lowe 502 
 
 "Willis V. Wazencraft, 765 
 
 wniison V. Watkins 311, 813, 826 
 
 Wilson V. Abbott, 242, 550 
 
 Wilson V. Beddard, 501 
 
 Wilson V. Betts, 932 
 
 Wilson V. Campbell, 4S0 
 
 Wilson V. Hooper, 50, 217, 543 
 
 Wilson V. Inloes, 62, 774 
 
 Wilson V. Kilcannon 933 
 
 Wilson V. Nance, 938 
 
 Wilson V. Palmer, 72 
 
xxxu 
 
 INDEX TO CASES CITED. 
 
 PAGE, 
 
 "Wilson V. Pratt 497 
 
 "Wilson V. St. Paul City, 725 
 
 "Wilson V. Sewell, 321 
 
 "Wilson V. Smith 223 
 
 "Wilson V. "Weatherby, 813 
 
 "Winohip V. Pitts, 291 
 
 "Winkworth v. Mann, 397 
 
 Winn V. Cole 72, 75 
 
 "Winona V. Huff, 68 
 
 "Wise V. "Wheeler, 801 
 
 "Wisnor V. "Wilcox, ;. 448 
 
 "Wither v. Gibson, 254 
 
 "Withers V. Harris, '591 
 
 "Wogan V. Small, i 498 
 
 AVolcott V. Knight, 938 
 
 "Wood V. Banks, 114, 895 
 
 "Wood V. Coghill 589 
 
 "Wood V. Grunby, 387, 401 
 
 Wood V. Jackson, 465 
 
 Wood V. Morton, 353,707, 708 
 
 Wood V. Payne, „ 583 
 
 Wood V. Staniels, 627 
 
 Wood V. Turner 796 
 
 Wood V. Walbridge, 323 
 
 Wood V. Wood, 379 
 
 Woodbridge V. Banning 686 
 
 Woodbury v. Shacklel'ord, 136 
 
 Woodcock V. Gibson, 189 
 
 Woodruff V. Garner 796 
 
 Woods V. Banks, '. :.. 114 
 
 Woods V. Galbraith 401 
 
 Woods V. McGuire's Children, 819, 820 
 
 Woodsy. Monroe 693 
 
 Woodson V. Michael, 349 
 
 PAGE. 
 
 Woodward V. Blanchard, 131 
 
 Woodward v. Clark 933 
 
 Woosterv. Butler, 895, 656 
 
 Worrell V. Brent, 583 
 
 Wright V. Carter 38 
 
 Wright V. Doe 503, 585 
 
 Wright V. Douglas 75,192, 535 
 
 Wright V. Hollingsworth 402 
 
 Wright V. Matthews, '. 873 
 
 Wright V. Moore 156, 216 
 
 Wright V. Wilson 693 
 
 Wright V. Wing l.SS 
 
 Wyatt V. Elam 819 
 
 Wykoft's Appeal , 497 
 
 Wyman v. Brown, 641 
 
 Wynn v. Corry 740 
 
 T. 
 
 Young V. Chamberlin, 371 
 
 Young V. Erwin 383, 803, 805 
 
 Young V. Holmes,- 178 
 
 Young V. Kirbner 357 
 
 Young V. McCampbell 942 
 
 Youst V. Martin, 575 
 
 Z. . 
 
 Zeigler V. Fi sher's Heirs, 676, 677 
 
 Zeller's Lessee v. Eckert 878 , 
 
 Zoringue V. Williams, 74 
 
 Zouch V. Forse 178 
 
 Zouch V. Parsons 321 
 
 Zouch V. Willinggale 249 
 
THE LAW OF EJECTMENT AND ADYEESE 
 ENJOYMENT. 
 
 PART I. 
 
 OF THE ACTIOlSr OF EJECTMENT. 
 
 CHAPTER I. 
 
 EEAL ACTIONS TTSUALLY CALLED ACTIONS OF EJECTMENT — THE OEIQIN, 
 HISTORY, NATURE AND OBJECT OF THE ACTION OP EJECTMENT. 
 
 By the modern practice of the courts, both in this country and 
 in England, questions of title to real property are, for the most 
 part, decided by the action of ejectment. Strictly speaking, the 
 action of ejectment is brought for the recovery of the possession 
 of real estate ; but the action is now more generally used, both in 
 England and in the United States, for the trial of title to lands ; 
 and it may be useful to inquire briefly into the origin, history, 
 nature and objects of the action, which has usurped the place of 
 all the ancient remedies for the recovery of real property. 
 
 The term " ejectment " is derived from the Latin word ejectio — " a 
 casting out," or from the term ejectione Jlrmae — "ejection, eject- 
 ment of farm;" or from the term quare ejecit infra terminum — 
 " wherefore (or why) did he eject within the term ?" and an eject- 
 ment has been defined to be " a personal action, founded on a 
 possessory right, by which a lessee for years, when ousted, shall 
 recover his term and damages." It is a possessory remedj', and 
 only competent when the lessor of the plaintiff may enter ; and 
 originally, the remedy by ejectment was an action brought by a 
 lessee of lands for years, to repair the injury done him by dispos- 
 5 
 
34 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 session. But the action has been so moulded to the condition of 
 the times, as to retain but few traces of resemblance to the parent 
 remedy, or scarcely any thing of its original form and uses. The 
 benefits of the action were extended long since, not only to cases 
 for the recovery of land from which a tenent has been unlawfully 
 ejected, but to cases for the trial of possessory titles to real estate, 
 and the determination of the right to the freehold itself. 
 
 Tlie writ upon which the action of ejectment was founded was 
 invented between the years 1327 and 1377, during the reign of 
 Edward III, King of England, when it was a mere action of tres- 
 pass to enable a lessee to recover damages of the party who had 
 ousted him of his possession. Yery soon, however, a new species 
 of remedy, not warranted by the original writ, was introduced 
 into the proceedings, for the purpose of enabling the plaintiff to 
 recover the term, and have a writ of possession thereupon, and 
 the action was applied to its present principal use, that of trying 
 the title to the land. It is diflBcult to ascertain the precise period 
 when this alteration in the action took place, although it is sup- 
 posed to have occurred about the year 1455. Erom this time a 
 new efficacy was given to the action, the old actions relating to 
 real estate fell into disuse, and the action of ejectment became 
 gradually the regular mode of proceeding for the trial of possessory 
 titles. There seems to be no report of the case in which the 
 experiment was first made to settle a disputed title of freehold by 
 the judgment of the court in the action of ejectment ; but we 
 find that the experiment succeeded, and the use of the action, as 
 well as its nature, became changed. 
 
 Eor several centuries after this important alteration in the 
 action of ejectment was made, in order to maintain the action it 
 was incumbent on the plaintiff, in case of any defense, to make 
 out four points; title, lease, entry, and ouster. Eirst, he must 
 show a good title in his lessor, which brought the matter of right 
 entirely before the court ; then, that the lessor, being seised or 
 possessed by virtue of such title, made him the lease for the term ■ 
 thii'dly, that he, the lessee or plaintiff, entered or took possession in 
 consequence of such lease ; and then, lastly, that the defendant 
 ousted or ejected him, whereupon he was entitled to judgment to 
 recover his term and damages, and a writ of possession, which the 
 sheriff executed by delivering to the plaintiff the undisturbed and 
 peaceable possession of his term. This was the regular method of 
 
THE ACTION OF EJECTMENT. 35 
 
 bringing the action of ejectment, in which the title of the lessor 
 came collaterally and incidentally before the court, in order to show 
 the injury done to the lessee by this ouster. But, as irmch trouble 
 and formality attended the actual making of the lease, entry and 
 ouster, a new and more easy method of trying titles by writ of 
 ejectment, when there was an actual tenant or occupant of the 
 premises in dispute, was invented by the Lord Chief Justice Eolle, 
 who sat in the court of upper bench in the time of the protector- 
 ate, about the year 1656, which depended entirely upon a string 
 of legal fictions, and by which all these forms of a lease, entry 
 and ouster, were dispensed with, and regarded merely ideal for 
 the sole purpose of trying the title. The parties to the action, 
 plaintiff and defendant, were fictitious, and all of the preliminaries 
 which the ancient practice required were feigned. Those who 
 have the curiosity to look into the learning upon the subject of the 
 fictions resorted to for the purpose of overcoming the innumerable 
 difficulties which attended real actions a few centuries ago, can 
 gratify their wishes by consulting 3 Blackstone's Commentaries on 
 the Laws of England, pages 200 to 207, inclusive, where a very 
 concise, clear and satisfactory history of the ancient remedy by 
 ejectment may be found. The system adopted by Lord Chief 
 Justice Eolle possessed many and obvious advantages over any 
 previous one. By it the claimant was exempted from the observ- 
 ance of useless forms, and the tenant was required to admit 
 nothing which could prejudice the merits of the case. Of course 
 it was not found to be entirely free from defects, and the courts 
 were sometimes confused between the ancient and more modern 
 sj'stems. But as the principles of the action became clearly under- 
 stood, and the practice reduced to a regular and settled system, 
 the remedy by ejectment was found to be well adapted to the 
 purposes of substantial justice, and a simple and most useful legal 
 proceeding. As the action was thus perfected and matured, it was 
 introduced and adopted in this country, and the remedy still con- 
 tinues to exist in some form, in all of the states of the Union. In 
 most of the states all the old fictions have been abolished, and 
 many of the deficiencies of the action have been corrected by 
 legislation. The courts everywhere regard the leading features 
 of the action with great favor and liberality, and it is altogether 
 probable that, whatever changes may be adopted in practice, the 
 distinctive principles governing the action will always be recog- 
 
36 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 nized and obseryed in the jurisprudence of all the American 
 States. The object of the action is to obtain the possession of 
 land, so that the remedy by ejectment is confined to cases in which 
 the claimant has a possessory title, or a right of entry upon the 
 lands. Whenever, by reason of the intervention of any of the 
 ancient rules regarding real property, the possessory right was 
 turned into a right of action, the right, of entry ceasing therewith, 
 the entry of the claimant became illegal, and consequently not 
 sufficient to enable him to convey a title to his lessee, the nominal 
 plaintiff in the action, and hence the action could not be sustained. 
 This was the old rule respecting ejectment, and as the principles 
 of the action have remained unchanged since the time of Lord 
 Chief Justice Eolle, although the character of its proceeding has 
 been altered, the right to make an entry on the land has con- 
 tinued to be I'equisite, notwithstanding the entry itself has eease'd 
 to be necessary. Of course, ejectment will not lie by a party 
 already in possession of the lands, and it is equally well settled 
 that, without a right of entry, the plaintiff cannot recover in an 
 action of ejectment. The party must, in all cases, have a subsist- 
 ing title or interest in the premises, and a present right of entry 
 thereupon, in order that he may be in a situation to make the 
 remedy by ejectment available and appropriate. In a word, the 
 object of the action is to put a party entitled thereto into posses- 
 sion of lands from which he is wrongfully restrained ; and no 
 person can recover in ejectment unless he has, at the time of com- 
 mencing the action, a valid, subsisting interest in the premises 
 claimed, and a right to recover the same, or the possession thereof 
 or of some share, interest or portion thereof to be established 
 at the trial. 
 
 Ejectment 'is regarded by some authors as a personal action, as 
 it certainly originally was ; by others it is considered as a species 
 of Tnixed action ; but by the better authority it is classed with 
 real actions, and this arrangement is more in accordance with the 
 nature and objects of the action. 
 
FOR WSAT EJECTMENT WILL LIE. 37 
 
 CHAPTER II. 
 
 FOE WHAT THE ACTION OP EJECTMENT WrLL LIE. 
 
 The nature of the property or thing which may be recovered by 
 the action of ejectment is often regulated by statute. By the com- 
 mon law, and the general rule, an ejectment will not lie for any 
 thing whereon an entry cannot be made, or of which the sheriff 
 cannot deliver possession. It would follow, therefore, by this rule, 
 that ejectment is only maintainable for corporeal hereditaments. 
 Any thing attached to the soil of which the sheriff can deliver 
 possession may be recovered in the action. A very good test is, 
 that the thing claimed be a corporeal hereditament, that a right 
 of entry exist at the time of the commencement of the action, and 
 that the interests be visible and tangible ; so that the sheriff may 
 deliver the possession to the plaintiff in execution of the judgment 
 of the court. (Rowan v. Kelsey, 18 Barb. E. 48i.) 
 
 Things that lie merely in grant are not the subjects of ejectment, 
 because these, being incorpoi-eal, are in their nature invisible, quoa 
 nequo tangi neovideripossunt ; and therefore not capable of being 
 delivered in execution. An ejectment lies of a stable, because it is 
 a word of determinate signification, and maybe delivered by a writ 
 of execution. So ejectment of a house, or of a chamber in the second 
 story of such house, is good, there being certainly enough to direct 
 the sheriff in the execution. {Doe v. Alderson, 1 Mees. & Welsh. 
 E. 210. Crocker v. Fothergill, 2 Barn. & Aid. E. 652. Child r. 
 Chappell, 9 N. Y. E. 246. Bacon's Abridgment, Ejectment, D. 
 Vide,, also, Jackson v. jBuel, 9 Johns. E. 298. Jackson v. May, 
 16 ib. 184. White v. White, 1 Harrington's E. 202.) But while 
 parcel of a building, as a room, being capable of delivery, is a 
 subject of ejectment, if it be destroyed by fire, or so altered that 
 it cannot be identified, the action will not lie. {Itowan v. Kelsey, 
 supra) 
 
 Land originally below ordinary high-water mart, on navigable 
 waters, but now raised up and transformed into dry land, by human 
 labdr, is subject to all the incidents of other lands, and may, there- 
 fore, be recovered in ejectment. {The People v. Mauran, 5 Denio's 
 E. 381.) So, also, it has been held that the owner of land may 
 recover in ejectment the space above his land, as, for example, 
 when an adjoining building overhangs it. This upon the princi- 
 
38 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 pie that the common-law signification of land embraces all above 
 and below it to an indefinite extent ; assuming, of course, that the 
 owner is not limited in his rights by the conveyance under which 
 he holds his land. {Sherry v. Freclcing, 4 Duer's E. 452.) But 
 the doctrine laid down in the case of Sherry v. FrecTcing hs.?, been 
 examined in a later case in the supreme court of the state of New 
 York, and expressly overruled. The justice who delivered the 
 opinion of the court said : " The books furnish but a single eas.e, 
 so far as I have been able to discover, where ejectment was sus- 
 tained under like circumstances ; and yet, if the action wonld lie, 
 it is remarkable that no other case has been reported to tliat effect, 
 either in some one of the United States or in England. The books 
 from the earliest reports in the English language, wherever the 
 common law has prevailed, down to near the present time, are full 
 of cases of -actions of trespass on the case for nuisances under cir- 
 cumstances similar in principle to the present. * * The case 
 above referred to, wliere ejectment was maintained, is that of 
 Sherry v. Frecldng (4 Duer, 452), where the wall of the defendant's 
 house overhung the plaintiff''s lot. The point appears, by the report 
 of the case, to have been decided with little or no consideration, 
 and without referring to a single authority to show that ejectment 
 would lie. The court admit that the claim is a novel one, but re- 
 mark that they do not see why it is not well founded, nor why, if 
 A builds over, though not npon, B's land, B may not have his 
 remedy by ejectment." The supreme court, accordingly', held 
 that when one erects a bnilding upon the line of his own premises, 
 so that the eaves or gutters project over the land of his neighbor, 
 this is not such an encroachment upon the possessions of the latter 
 as will sustain an action of ejectment. {A%ken v. Benedict, 39 
 Barb. E. 400.) The doctrine of this latter case is more in har- 
 mony with the general principles governing the action to recover 
 the possession of real property than that of the former, and may- 
 therefore, be regarded as the better law. 
 
 The owner of the farm can sustain ejectment against a party 
 who has exclusively appropriated a portion of a highway to his own 
 use, or appropriates it to any other use than this servitude.' {Wa- 
 ger V. The Troy Union R. li. Co., 25 N. Y. E. 520. Wright v. 
 Carter, 3 Dutch. E. T6. Carpenter v. The Oswego and Syracuse 
 li. E. Co., 24 N. T. E. 655. Lazier v. The New Torh Cen. E. E. 
 Co., 42 Barb. E. 405. Jackson v. Hathaway, 15 Johns. E. 447. 
 
FOK WMAT EJECTMENT WILL LIE. 39 
 
 Brown v. Galley, Lalor's Supp. 308. Goodtitle v. Alker, 1 Burr, 
 li. 133. Stackrpole v. Ilealy, 16 Mass. R. 35. Boiling v. Mayort 
 etc., 3 Eand. R. 563. Cooper v. Smith, 9 Serg. and Rawles' R. 26.) 
 Even in a case where the owner of land conveys the same to an- 
 other, excepting the part included in the highway, the grantor may 
 maintain ejectment against the grantee,"who had dug up the high- 
 way and run a water-pipe across it ; set out fruit and shade trees 
 upon it ; piled stone, lime and manure within its boundaries, and 
 used a portion of it for farming purposes, and claimed as against 
 the grantee to be the owner of the land and had a right to appro- 
 priate it to such uses. {Et2 v. Daily, 20 Barb. R. 32. But vide 
 Bedfield v. Utica and Syracuse B. B. Co., 25 ib. 54.) 
 
 A party may have ejectment for right of herbage, pro prima 
 tonsura ; that is to say, if a man has a grant of the first grass that 
 grows on the land every year, he may maintain ejectment against 
 him who withholds it from him. ( Ward v. Petifer, Cro. Car. 362.) 
 So, also, ejectment may be had on a demise of the hay-grass and 
 after-math ( Wheeler v . Toulson, Hard. 330), on the principle, 
 iti these cases, that the parties, being entitled to all the profits of 
 the hind, are entitled also to the land for the same time, and no 
 one can enter thereon while they are thus entitled without being a 
 trespasser. But the ejectment in such case should not be brought 
 for the land generally, but for the first grass or after-math thereof, 
 as the case may be. (Adams on Ejectment, 22.) A right to the 
 herbage will be sufficient to support an ejectment, because he who 
 has a grant of the herbage has a particular interest in the soil, 
 although by such grant the soil itself does not pass. But the 
 ejectment should be for the herbage of the land, and not for the 
 land itself. ( Wheeler v. Toulson, Hardes' R. 330.) 
 
 In case the owner of the fee of the land suffers another to erect 
 buildings thereon, with the understanding that when they are 
 complete, he will either pay for them or convey the land, at his 
 own election, and, he not making his election, the other continues 
 in occupation, ejectment will lie by the occupant upon an ouster 
 during such occupation. {King v. Catlin, 1 Tyler's R. 355.) So 
 ejectment may be maintained against a vendee entering into pos- 
 session of land under a contract of purchase, which he fails to 
 perform on his part, on showing notice from the vendor that the 
 contract is at an end. {Jachson v. Moncrief, 5 "Wend. R. 26. Vide 
 also Harver v. Morris, 4 Binn. R. 77. Mitchell v. De Boche, 1 
 
40 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Teates' E. 12. Marlin v. Willinh, 7 Serg. & Eawle's E. 297. 
 Earle \. McCoij, 7 J. J. Marsh. E. 318.) Indeed, the authorities 
 go to the extent of holding that when the purchaser of land has 
 made default in the payment of money, under an executory con- 
 tract, no notice to quit is necessary, nor any demand of the amount 
 due, or of the possession, or tender of a deed, before bringing an 
 action of ejectment. (Hotaling v. Hotaling, 47 Barb. E. 163. 
 Powers V. Ingraham, 3 ib. 576. Doolittle v. Eddy, 7 ib. 74. 
 Candee v. Haywood, 34 ib. 352. . Wright v. Moore, 21 "Wend. E. 
 230.) But it has been held in one case at least, that the vendee 
 of land who has paid a part of the purchase-money, enters into 
 possession, and fails to pay the residue, according to the terms of 
 the contract of sale, cannot be dispossessed by the action of eject- 
 ment in favor of the vendor, without a notice to quit, or a notice 
 that the contract is rescinded, or a demand of payment and notice 
 of rescinding such contract. ( Yide Costigan v. Wood, 5 Cranch's 
 C. C. E. 507.) When lands are devised to trustees, to convert 
 into money, and to invest the proceeds on bond and mortgage, and 
 to collect and receive the income and profits thereof, and apply 
 the same, during two specified lives, to the use of certain persons 
 named, the trustees are seized of such an estate in the lands as 
 will entitle them to maintain ejectment. {McLean v. Maodonald, 
 2 Barb. E. 534.) The heir who is entitled to the inheritance may 
 have ejectment against a widow holding possession of the land of 
 M-hich her husband died seised, that is to say, after the expiration 
 of her quarantine, if it do not appear that the land in controversy 
 was assigned her as her dower. This is upon the assumption that 
 no local statute exists authorizing her to remain in possession until 
 her dower is assigned. ( Vide Moore v. Gilliam, 5 Mumf. E. 346. 
 Chapman v. Armistead, 4 ib. 382.) But, in several of the states, 
 the widow, if in possession, cannot be ousted until her dower is 
 assigned ; and she is deemed a tenant in common with the heirs 
 to the extent of her i-ights. This is the rule in Virginia, Ken- 
 tucky, Connecticut, Ehode Island, New Jersey, Alabama, Illinois 
 and Missouri ; and of course, in' those states, ejectment may not 
 be brought by the heir as above stated. ( Vide Ben v. JDod, 1 
 Halst. E. 367. Stedman v. Fortune, 5 Cow. E. 462. Crocker v. 
 Fox, 1 Boot's E. 227. Colder v. Bull, 2 ib. 50. Phares v. Leech- 
 man, 20 Ala. E. 662. Springly v. Shields, 17 ib. 295. Shelton 
 V. Carrol, 16 ib. 148. Eambo v. Pell, 3 Kelly's E. 207. Singleton 
 
FOB WSAT EJECTMENT "WILL LIE. 41 
 
 V. Singleton, 5 Dana's E. 89. Stolces v. McAllister, 2 Missouri E. 
 163.) In most of the states, however, ejectment may be had in 
 such cases, as before stated. 
 
 Ejectment lies for land under water, on a title derived from the 
 commissioners of the land office. (Champlain and St. Lawrence 
 Railroad Company v. Valentine, 19 Barb. E. 484.) But the 
 action does not lie for a mere right.^f way. {Northern Turnjpike 
 Convpany v. Smith, 15 Barb. E. 355.) JSTor can ejectment be 
 brought for a mere easement in any case. {Judd v. Leonard, 1 
 Chap. E. 204. Child v. Chappell, 9 IST. Y. E. 246.) This rule is 
 upon the principle that ejectment only lies for something tangible, 
 something of which possession may be delivered by the sheriff to 
 the plaintiff, which is the general doctrine, as has been before inti- 
 mated. Ifeither will the action lie for an incorporeal hereditament. 
 {Black V. Hepburn 2 Yeates' E. 331.) An ejectment lies of a 
 boilery of salt, that is, a person having a lease or grant of so many 
 buckets of salt water from a well of salt water, from the owner 
 of the soil in which the well is located, which are withheld from 
 him, may bring his ejectment for so many boileries as are secured 
 to him by his grant. So an ejectment lies for acoal mine, because 
 it is not to be considered as a bare profit apprender ; but a coal 
 mine comprehends the ground or soil itself, which may be deliv- 
 ered on the execution ; and though a person may have a right to 
 the mine without having any title to the soil, yet the mine itself 
 being fixed in a certain place, the sheriff has a thing certain before 
 him, to deliver in execution. (Bac. Abr. Ejectment, D. D.) 
 
 Ejectment will not lie against a mortgagee, or an assignee of a 
 mortgagee in possession of the mortgaged premises, when such 
 possession was lawfully acquired after condition broken. It can- 
 not be denied that the mortgagee has an interest in the mortgaged 
 premises, and that interest, after forfeiture, is a legal interest : it 
 is indeed inchoate until foreclosure of his mortgage, but it has 
 always been considered sufficient to protect him in the possession 
 of the mortgaged premises, when legally obtained. (Phyfe v. 
 Riley, 15 "Wend. E. 248. St. John v. Bumpstead, 17 Barb. E. 100.) 
 
 A tenant in common cannot maintain ejectment against his 
 co-tenant, without showing an actual ouster or some act amounting 
 to a total denial of his right. The denial must be such as to 
 amount to a disseisin of the co-tenant, or establish an adverse pos- 
 session on the part of the wrong-doer. {Edwards v. Bishop, 4 iN". 
 6 
 
42 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 T. E. 61. Ricard v. Williams, 7 "Wheaton's E. 59. Vide Valen- 
 tine V. Northrop, 12 "Wend. E. 49i. Olapp v. BromagJiam, 9 Cow. 
 E. 530.) 
 
 It was formerly held that ejectment did not lie for a chnrcla or 
 cliapel, though corporeal hereditaments, becanse they were res 
 sacrm, and, therefore, not admissible ; but this doctrine has been 
 long since exploded, though care must be taken that the action be 
 brought in favor of, and against, the proper parties. {Lucas v. 
 Johnson, 8 Barb. E. 244. Van Deuzen v. The Presbyterian Cong, 
 at Fort Edward, 3 Keyes' N. Y. E. 550. Thyn v. Thyn, Styles' 
 E. 101. miUngsworth v. Brewster, 1 Salk. E. 256.) 
 
 A common appendant or appurtenant may be recovered in an 
 ejectment brought for the lands to which it is appendant or appur- 
 tenant, provided, such right of common be mentioned in the 
 description of the premises ; because, he who has possession of the 
 land, has also possession of the common ; and the sheriff, by giving 
 possession of the one, executes the writ as to the other. But it is 
 thought, however, to be prudent ia such a case, to state in the 
 description, that the common so claimed is a common appendant 
 or appurtenant, although it has been held after verdict, that an 
 ejectment for lands and also for " common of pasture," generally, 
 is sufficient. (Adams on Ejectment, 19.) 
 
 "When in a conveyance the grantor reserves to himself, his heirs, 
 and assigns, forever, " the right and privilege of erecting a mill- 
 dam at a certain place described, and to occupy and possess the 
 said premises, without any hindrance or molestation from the 
 grantee or his heirs, etc.," it is considered that he has such an 
 interest in the land reserved as will entitle him to his action of 
 ejectment against the person depriving him of the use of such 
 privilege. {Jackson v. Buel, 9 Johns. E. 298.) But the grant of 
 a privilege to erect a machine and building on land, without 
 defining the place where they are to be erected, or the quatitity 
 of ground which is to be occupied, does not, withoiit an actual 
 entry and location, confer such a right as to enable the lessee to 
 maintain ejectment. {JacTtson v. May, 16 Johns. E. 184.) 
 
 The grantor of lands may maintain ejectment to repossess him- 
 self of the lands conveyed, when the premises have become for- 
 feited by reason of the violation of covenants contained in the 
 grant. For example, when a deed contains a covenant, to the 
 effect, that the grantee will not erect, or suffer to be erected, any 
 
FOB WHAT EJECTMENT WILL LIE. 43 
 
 structure, ■whereby the view or prospect of G. (not a party to the 
 deed) shall be obstructed, and, in case of breach, the premises to 
 be forfeited to the grantor, for the use of G., his heirs and assigns, 
 the court of appeals of the state of New York held, that the 
 language employed made the land described an estate upon con- 
 dition, and that it was not the less valid, because the thing pro- 
 hibited was declared to be for the protection or convenience of a 
 person occupying adjoining land. (Gihert v. Peteler, 38 JT. T. R. 
 165.) The point was not involved in this case, but of course the 
 grantor, and, in some states, the person for whose benefit the con- 
 dition in the grant was imposed, could bring ejectment to recover 
 the premises on their being forfeited, by the . violation of the 
 condition. • 
 
 "" It was formerly held that an ejectment could not be maintained 
 for a fishery, because it was only a profit a^render, but this doc- 
 trine has been repudiated, and it was said a long time ago by 
 Ashurst, J., " there is no doubt but that a fishery is a tenement ; 
 trespass will lie for an injury to it, wnd it may ie recovered in 
 ejectment. {Bex v. The Inhabitants of Old Arlesford, 1 Term K. 
 358.) 
 
 But ejectment will not lie for a water-course or rivulet, though 
 mentioned by name ; because it is impossible to give execution of 
 a thing which is transient, and always running. But if the 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." The case of a pool, or pit of water, is quite 
 different, because here the words comprehend both land and 
 water, and hence ejectment may be maintained in such a case. 
 (Adams on Eject. 21. Vide also WilJclow v. Lane, 37 Barb. E. 
 244.) 
 
 The right of the riparian proprietor to land below high water 
 mark may be vindicated against disseisin in an action of eject- 
 ment. {Nichols V. Lewis, 15 Conn. E. 137.) 
 
 When the party has, at most, a mere equitable title to the land, 
 the possession of which he seeks to recover, he cannot maintain 
 his action of ejectment; because an equitable estate is not, in 
 general, snfiicient to support an ejectment. {Pech v. Newton, 46 
 . Barb. E. 173. Lessee of Cooper v. OaTbraith, 3 Wash. E. 546. 
 Fenn v. Holme, 21 How. U. S. E. 481.) It seems, however, that 
 by the policy prevailing in Pennsylvania, the owner of an equita- 
 
44 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ble title may recover in ejectment or partition. {Willing v.' 
 Brown, 7 Serg. and Eawle's E. 467.) The reason of this rule in 
 Pennsj'lvania is, that, under the laws of that state, they have no 
 court of chancery, and hence an action of ejectment is sustainable 
 there on an equitable title, by' the state courts; but this doctrine 
 is not recognized by the courts of the United States, even -when 
 the action relates to lands in the state of Pennsylvania. {Swayse 
 V. JBurhe, 12 Peters' E. 11.) 
 
 So, also, the purchaser of a partner's share or interest in the 
 lands of an association cannot maintain ejectment for the land 
 purchased. His remedy is in a court of equity, where an account- 
 ing can be had. {Glagett v. Kilbonrne, 1 Black's TJ. S. E. 346.) 
 
 Although an executor has no power over the fee sirrtple estate, 
 unless authority is given him by the will, he may maintain eject- 
 ment for lands held by the testator for a term of years. {Duchane 
 V. Goodtitle, 1 Black's E. 117.) 
 
 If the title to land be cast by descent on a married woman, her 
 husband, having a life estate, may maintain ejectment for the 
 recovery of the possession of such land ; and after the termination 
 of the life estate, the person holding the interest in remainder 
 may bring ejectment to recover the estate of the wife. Those 
 several estates are of a nature to be recovered in the action. 
 (Gregg v. Tesson, 1 Black's U. S. E. 150.) 
 
 CHAPTEE III. 
 
 FOE WHAT THE ACTIOIT OF EJECTMENT WILL LIE BY THE STATUTES OF 
 THE SEVERAL STATES. 
 
 The common law in respect to the things for which the action 
 of ejectment will lie has in some instances been modified by the 
 local legislation of the several states. 
 
 By the Eevised Statutes of the state of New York, it is pro- 
 vided that, subject to certain provisions, the action of ejectment 
 may be brought in the cases and the manner theretofore accus- 
 tomed, and, in addition, in the same cases in which a writ of rio-lit 
 may be brought by law, to recover lands, tenements or heredita- 
 ments ; and by any person claiming an estate therein in fee or for 
 
FOB WBAT EJECTMENT WILL LIE m NEW YORK, 45 
 
 life, either as heir, devisee or purchaser; and by any 'widow 
 entit]^ d to dower, or by a woman so entitled and her husband, 
 after the expiration of six months from the time her right accrued, 
 to recover her dower, of any lands, tenements or hereditaments ; 
 but that no person can recover in ejectment, unless he has, at the 
 time of commencing the action, a valid, subsisting interest in the 
 premises claimed, and a right to recover the same, or to recover 
 the possession thereof, or of some share, interest or portion thereof, 
 to be proved and established at the trial. (2 Stat, at Large, 312, 
 §§1,2,3.) 
 
 At common law, after a mortgage becomes forfeited by non- 
 payment of the moneys secured thereby, the mortgagee may 
 immediately proceed by ejectment against the mortgagor or other 
 party iu possession under him, and this is the law in many of the 
 States at the present day. By the Revised Statutes of New York, 
 however, no action of ejectment can be maintained by a mort- 
 gagee, or his assigns or representatives, for the recovery of the 
 possession of the mortgaged premises. (2 Stat, at Large, 321, 
 § 57.) The courts of this state hold the effect of a mortgage to 
 be merely the creation of a specified lien, as security for the per- 
 formance of the conditions expressed, which are either the pay- 
 ment of money or the performance of covenants or contracts, and 
 does not pass the title, which continues in the mortgagor until 
 foreclosure and sale, and it was for this reason doubtless that the 
 statute was passed prohibiting the maintaining an action of eject- 
 ment upon a mortgage until it is foreclosed. 
 
 It will be observed, however, that the cases in which ejectment 
 may be maintained have been considerably extended by the statutes 
 of New York. The action is retained in all the old eases, and in 
 addition it may be brought, in other specified cases; for example, 
 in the same cases in which the writ of right could be brought by 
 law. This is an important addition. 
 
 The writ of right — hreve de recto, or Irefe de droit — was, in its 
 nature, the highest writ in the old practice, but it lay only by an 
 estate in fee simple, and not for him who had a less estate. It lay 
 concurrently with all other real actions, in which an estate of fee 
 simple might be recovered ; and it also lay after other real actions, 
 being as it were an appeal to the mere right, when judgment had 
 been had as to the possession in an inferior possessory action. (3 
 Black. Com. 193.) This remedy is still retained in some of the 
 
4:6 LAW OF EJECTMENT AND ADVERSE ENJOTJIENT. 
 
 states, though the writ is in general disused in practice, and in 
 New York it is superseded entirely by the action of ejectmeqj!;. 
 
 But, by the Eevised Statutes of New York, the remedy by eject- 
 ment is still further extended to all cases in which the party 
 claims an estate in lands in fee or for life, either as heir, devisee or 
 purchaser, and to cases in which the widow is entitled to dower. 
 In this state, therefore, ejectment is the principal method in Use 
 for the trial of titles to land and the recovery of the possession of 
 real estate. 
 
 The common law remedy by ejectment is curtailed in the state 
 of New York only in the cases of mortgage. In these cases, the 
 action is peremptorily prohibited, and the prohibition extends not 
 only to cases of mortgages in form, but to those where the parties 
 in equity sustain the relation of mortgagor and mortgagee. Por 
 example, a party making title to premises by the assignment of the 
 legal title as security for a debt, holds the same in the character 
 of mortgagee, and, as mortgagee, cannot maintain "ejectment for the 
 possession of the premises. A deed of conveyance absolute upoi^ 
 its face, if intended for the security of a debt, is, in equity, a mort- 
 gage, and the same rule applies as in the case of a i^gular mortgage. 
 {^Murray v. Walker, 31 N. Y. K. 399. Yide also Dahler v. Signer, 
 37 Barb. E. 329). 
 
 Ordinarily, where the purchaser of lands has made default in the 
 payment of money under an executory contract, ejectment may be 
 maintained against him to regain the possession of the lands; bnt, 
 under the New York statute, the assignee of the purchaser of such 
 lands, who takes the assignment as security for the payment of a 
 debt, cannot, in default of payment, recover possession of his 
 assignor in an action of ejectment. In such a case, the title of the 
 assignee of the purchaser is that of a mortgagee before foreclosure, 
 especially as to the assignor, and upon such a title he cannot main- 
 tain ejectment, by reason of the prohibition of the statute. {^Camp- 
 Mi V. Sworn, 48 Barb. E. 109.) 
 
 There is a special statute also in the state of New York, in 
 respect to bringing ejectment for demised premises. It is provided, 
 that, whenever any half year's rent or more shall be in arrear from 
 any tenant to his landlord, and no sufficient distress can be found 
 on the premises to satisfy the rent due, if the landlord has a sub- 
 sisting right by law to re-enter for the non-payment of such rent, 
 he may bring an action of ejectment for the recovery of the pes- 
 
FOB WHAT EJECTMENT WILL LIE IN MAINE. 47 
 
 session of the demised premises ; and the sei'viee of tlie declaration 
 therein shall be deemed, and stand instead of, a demand of the 
 rent in arrear, and as a re-entry on the demised premises. (2 Stat, 
 at Large, 521, § 30. Vide Van Hensselaer v. Jewett, 5 Denio's 
 E. 121.) This provision of the statute is applicable as well to 
 grants in fee reserving rent as to leases for life or years. ( Van 
 Hensselaer v. Snyder, 13 N. Y. K. 299.) So, also, an assignee 
 of the rent reserved has the same right to maintain ejectment 
 as is conferred by statute on the original lessor. ( Van Hensse- 
 laer V. Slirigerland, 26 IS". Y. E. 580. Van Rensselaer v. Smith, 
 27 Barb. E. 104.) The legislature of the state passed an act in 
 1846 (Laws of 1846, cli. 274), abolishing distress for rent, but the 
 act does not take away the remedy by ejectment for the non-pay- 
 ment of rent. On the contrary, this act is to be construed in 
 connection with the above provisions of the Revised Statutes, 
 whereby the remedy by ejectment is made applicable to a tenant 
 on whose premises there is a sufficient distress, provided a notice 
 of such intention, in writing, is served on the tenant fifteen days 
 before the suit is commenced, in conformity to the third section 
 of the act. ( Williams v. Potter, 2 Barb. E. 316.) In case there 
 is not a sufficiency of goods and chattels on the demised premises 
 for the satisfaction of the rent, on default of the tenant to pay the 
 rent according to the terms of the lease, ejectment will lie to 
 recover possession of the premises without the notice above referred 
 to. {The Mayor, etc., of New Torh v. Camplell, 18 Barb. E. 156.) 
 
 There is also a provision in the statutes of the State of New 
 York permitting an action of ejectment for the recovery of lands 
 to which the people have title by escheat. (1 Stat, at Large, 254, 
 § 1 ; The People v. Van Hensselaer, 8 Barb. 189.) So, also, eject- 
 ment may be brought for the recovery of lands forfeited to the 
 «people of the State upon any conviction or outlawry for treason. 
 (1 Stat, at Large, 256, § 1.) 
 
 In the state of Maine, the remedy by ejectment is confined to 
 cases of freehold ; or in other words it is provided by the statutes 
 of that state, that any estate of freehold, whether in fee simple, 
 fee tail, or for life, may be recovered by a writ of entry ; and all 
 other writs of entry, writs of right and of formedon, are abolished. 
 (R. S. 1857, ch. 104, § 1.) 
 
 The statute further provides that there must be a right of entry 
 at the time the suit is commenced, and that no descent or discon- 
 
48 LAW OF EJECTMENT -AND ADVERSE ENJOYMENT. 
 
 tinuance shall defeat any right of entry for the recovery of real 
 estate. (R. S. ch. 104, § 5.) 
 
 A freehold estate is an estate of inheiitance, or for life, in either 
 a corporeal or incorporeal hereditament, existing in, or arising 
 from, real property of free tenure ; or, as Bouvier gives it in his 
 Law Dictionary, it -is " an estate in lands or other real property, 
 held by a free tenure, for the life of the tenant, or that of some 
 other person, or for some uncertain period." Britton defines an 
 estate of freehold to be " the possession of the soil by a freeman ; " 
 and Blackstone tells us that such estate and no other " as requires 
 actual possession of the land is, legally speaking, freehold^'' and 
 again ; " as, therefore, estates of inheritance and estates for life 
 could not, by the common law, be conveyed without livery of 
 Beisin, those are properly estates of freehold ; and as no other 
 estates are conveyed with the same solemnity, therefore no others 
 are properly freehold estates." (2 Black. Com. 104.) But a free- 
 hold estate may now be created without livery of seisin ; the 
 definition by Blackstone is defective. A fee simple is the 
 estate of the party who has lands, tenements, or hereditaments, to 
 hold to him and his heirs forever, generally, absolutely, and simply ; 
 without mentioning what heirs, but referring that to his own 
 pleasure, or to the disposition of the law. In other words, an 
 estate in fee simple is an absolute estate of inheritance, limited to 
 a person, his heirs and assigns forever ; without any qualification 
 or restriction. The fee simple or inheritance of lands and tene- 
 ments is generally vested and resides in some person or other, 
 though divers inferior estates may be carved out of it. 
 
 The expression, " fee tail," was borrowed from the feudists, among 
 whom it signified any mutilated or truncated inheritance, from 
 which the heirs general were cut ofi^; being derived from the 
 barbarous verb tiliare, to cut ; from which the French tailler, and 
 the lia\iax\.tagliare, are formed. In a word, a fee tail is really a 
 lesser estate of inheritance, cut or carved out of a fee simple. If 
 I give land to a man and the heirs of his body, this is an estate 
 tail, for here I explain the general import of the word " heirs " to the 
 descendants of the body of the donee. Estates tail have no practi- 
 cal existence in the United States, and in some of the States they 
 are wholly unknown. 
 
 An estate for life is, when a conveyance is made of lands or 
 tenements to a man, to hold for the term of his own life, or for the 
 
iVB WHAT EJECTMENT WILL LIE IN NEW SAmPSBIEE. 4.9 
 
 life of any other person, or for more lives than one. This estate 
 may be created, not only by express words, but by a general grant^ 
 ■without defining or limiting any spfecific estate, but if one grants 
 land to another, this makes the grantee tenant for life. As tiiere 
 are no words of inlieritance or heirs mentioned in the grant, it 
 cannot be construed to be a fee ; it will, however, be construed to 
 bo as large an estate as the words of the grant will bear, and, 
 therefore, an estate for life. By keeping these definitions in mind, 
 the student will be able to determine for what things an ejectment 
 may be brought, or which may be recovered by a writ of entry, in 
 the state of Maine. It will be observed that the remedy is 
 limited to an estate of freehold, and that, instead of recovering 
 the estate by the formal action of ejectment, the writ of entry is 
 made use of. This distinction is one of form only ; the substance 
 is the same. By the common law, the writ of entry was the uni- 
 versal remedy to recover possession of real estate wrongfully with- 
 held from the owner. Technicallj-, it was a possessory action, as 
 the action of ejectment was, and did not decide the right of prop- 
 erty. But by the statutes of Maine, it is quite evident that the 
 same matters may be litigated in the action by writ of. entry as in 
 the action of ejectment. The mortgagor, or person claiming under 
 him, cannot maintain a writ of entry against the assignee of an 
 imdiseharged mortgage, paid after breach of condition, If the 
 action can be maintained at common law, by the statutes of the 
 state of Maine, the mortgagor, not in possession, has no remedy 
 but in a court of equity. {Dyer v. Toothaker, 51 Maine E. 380. 
 Stewart v. Crosby, 50 ib. 130. Gray v. Jenha, 3 Mason's R. 520, 
 527.) But the owner of the equity of redemption of real estate 
 may maintain a real action for its possession, against anyone, 
 except the mortgagee and those claiming under him. {Stinson v. 
 Jioss, 61 Maine E. 566.) 
 
 In the state of New Hampshire, there seems to be no statute 
 providing for the cases in which the action of ejectment may be 
 brought, and therefore the doctrines of the common law must 
 govern the action in this respect in that state. There is a statute, 
 however, regulating the form of the judgment in suits upon mort- 
 gages in the state, which provides that, in actions on mortgages, 
 the judgment shall be conditional, that if the mortgagor or person 
 having his right pays to the mortgagee or person having his right 
 the sum tlie court shall adjudge due, within two months after 
 
60 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 judgment rendered, with interest, such judgment shall be void ; 
 otherwise a writ of possession shall issue. (General Statutes, 1867, 
 ch. 233, § 12.) This reference is important in this place, simply 
 to show that the common law doctrine in respect to the action of 
 ejectment, by the mortgagee, for the recovery of the mortgaged 
 premises, after forfeiture, is recognized in that state. It has been 
 held in New Hampshire that if two are severally seised by like 
 title, of separate lots of land, which have been previously mort- 
 gaged by their grantor in the same conveyance, and one pays the 
 debt and takes an assignment of the mortgage, he may maintain 
 a writ of entry against the other, and have a conditional judgment 
 for such sum as he ought in equity to receive. {AiTcin v. Gale, 
 37 K H. E. 501.) 
 
 Under the jurisprudence of New Hampshire, a real action can 
 be supported only by a tenant of a freehold estate, and against 
 one whom the demandant is entitled to regard as claiming to be 
 also a tenant of the freehold. No such action can be supported 
 by one whose interest is merely equitable. Hence, it is held that 
 a mortgagor, or his assignee, of a subsisting mortgage, cannot 
 maintain , a real action against the mortgagee or his assignee : as 
 between them the mortgagee has the legal title, and he cannot be 
 turned out of possession by one whose title is merely equitable. 
 {Johnson v. Elliot, 26 N. H. E. 67.) 
 
 By the statutes of Vermont, any person having claim to seisin or 
 possession of lands, tenements or hereditaments, may bring eject- 
 ment to recover possession, and a judgment in the action is made 
 conclusive against all the parties to it, their heirs and assigns, so 
 long as it continues in- force. (Gen. Stat. 1863, ch. 40, §§ 1, 2.) 
 
 As the statutes of Vermont stand, a mortgagee may have eject- 
 ment to recover possession of the mortgaged premises at anv time 
 after the day of payment is past, and that too without notice to 
 quit, either against the mortgagor or his assignee. {Lyman v. 
 Mower, 4 Vt. E. 345. Vide also Wilson v. Hooper, 13 ib. 653.) It 
 is declared by statute, however, that every mortgagor shall, until 
 condition broken, be deemed to have, as against the mortgagee, the 
 legal right of possession to the mortgaged premises, unless it shall 
 be otherwise clearly stipulated in the mortgage deed. (Gen. Stat. 
 ch. 40, § 12.) 
 
 To enable an assignee of a mortgage to maintain ejectment the 
 courts of Yermont hold that it is incumbent on the assignee to 
 
FOR WSAT EJECTMENT WILL LIE IK VERMONT. 51 
 
 get his assignment recorded. {Pratt v. Bank of Bennington, 
 10 Yt. E. 293.) 
 
 The action of ejectment may be maintained on a mortgage in 
 Vermont, and the mortgaged lands recovered, though the statute 
 of limitations has run on the debt. {Beed v. Shi;pley, 6 Vt. 
 E. 602.) 
 
 When a person entitled to the possession of lands brings eject- 
 ment to recover such possession, and afterward executes a mort- 
 gage deed for the premises to a third person, his proceedings in 
 ejectment will not be prejudiced thereby, even though such mort- 
 gage deed is in terms an absolute conveyance. {Gibson v. Seymour, 
 3 Yt. E. 602.) And if, while an action of ejectment is pending, a 
 decree of foreclosure be obtained by a third person for the prem- 
 ises demanded, the decree will not prevent a recovery in the 
 action of ejectment, provided the time of redemption given by 
 the statutes of Yermont be unexpired. {Gatlin v. Washburn, 3 Yt. 
 E. 26.) 
 
 A son remaining in possession of premises after his father's 
 decease, under a mere family arrangement, without legal proceed- 
 ings being had therefor, cannot maintain ejectment, under the 
 policy of Yermont. {Boardman v. Barilett, 6 Yt. E. 631.) 
 
 "When one person has paid the purchase money in whole or in 
 part, and the deed is given to another, who consequently has the 
 legal title to the land, the courts of Yermont hold, that the levy 
 of an execution by a creditor against the person paying the pur- 
 chase-money, would give the creditor only that person's equitable 
 interest, and to recover that, the action of ejectment cannot be sus- 
 tained. The common law doctrine, that in the action of ejectment 
 the legal title will prevail over the equitable interest, seems to be 
 fully recognized in the state of Yermont. To sustain the action 
 there, it is necessary for the plaintiff to prove in himself the legal 
 title, and the right of possession to the premises in question, and 
 that the defendant' wrongfully withholds the same from him. 
 {Dewey v. Long, 25 Yt. E. 564.) 
 
 The estate and right of possession are given to the mortgagee 
 by the statutes of Yermont, after condition broken, and he may, 
 after such condition is broken, sustain his action of ejectment 
 against the mortgagor or his grantees, without notice to quit. 
 {Pierce v. Brown, 24 Yt. E. 165.) The object of the action of 
 ejectment, as adopted and in use in the state of Yermont, is not 
 
52 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 merely to recover the possession, but to settle the title and establish 
 the right of property, as well as to recover the possession. To this 
 end, and to prevent a repetition of action, the judgment, instead 
 of leaving the title and right of property unsettled, and the same 
 question liable to be re-tried by successive suits, as at common law, 
 is made conclusive as to all the parties. Looking to the purpose 
 and effect of the action, as thus defined and regulated, it would 
 seem, that, as a general rule of practice naturally resulting there- 
 from, independent of any special legislative enactment on the sub- 
 ject, any person under whom a tenant in possession may, legally 
 speaking, be said to hold, whatever may be the nature or character 
 of the tenancy, should be liable to be made a party to the action. 
 {Marvin v. Dennison, 20 Vt. E. 602.) 
 
 The language of the statute is, that any person having claim to 
 seisin or possession of lands, tenements or hereditaments, may 
 bring ejectment to recover possession, but the courts seem to hold 
 that this claim to seisin or possession must be a legal one, and that 
 an equitable claim is not such an estate as may be recovered in the 
 action, notwithstanding it is said that one object of th&^action is 
 to settle the title and establish the right of property in the premises 
 in dispute. 
 
 In the state of Massachusetts, it is declared, by statute, that all 
 estates of freehold, whether in fee simple, fee tail, or for life, may 
 be recovered by a writ of entry upon disseisin, unless when a dif- 
 ferent action is prescribed by law, and all writs of right, and of 
 formedon, and all writs of entry, except in the cases above stated, 
 are abolished. (Gen. Stat., ch. 134.) 
 
 It will be observed that there is a similarity between the statutes 
 of Massachusetts and Maine respecting actions for the recovery of 
 real estate ; and, therefore, what has been stated in regard to the 
 remedy by ejectment in Maine is pertinent to the subject in Mas- 
 sachusetts, an,d the judicial decisions of the courts construing the 
 statutes of either state are alike applicable in both states. 
 
 In Massachusetts, it is held, that a mortgagor cannot maintain 
 ejectment against the mortgagee to recover possession of the mort- 
 gaged lands, although the whole amount due on the mortgage has 
 been tendered. Neither can the mortgagor have a writ of entry 
 in such a case. His only remedy is by bill in equity. {Rill v. 
 Payson, 3 Mass. E. 559. Parsons v. Wells, 17 ib. 419. Bigelow 
 V. Willson, 1 Pick. E. 491.) 
 
FOB WHAT EJECTMENT WILL LIE IN MASSACHUSETTS. 63 
 
 A writ of entiy hj a second mortgagee will not lie against a 
 tenant of a prior mortgagee who has taken possession for condition 
 broken. {Batcheller v. Pratt, 10 Cush. E. 185.) - 
 ■ The writ of entry will lie by the former owner of land sold for 
 non-payment of taxes, if he has tendered the proper sum to the 
 purchaser within two years, according to statute, although he 
 might also have a bill in equity under the statute of 1849, 
 to compel a reconveyance. {Rand v. Mohinson, 11 Cushing's 
 E. 289.) 
 
 "When a devise of land was made to the testator's minor daughter, 
 " to have and to hold to her sole use and behoof forever, subject, 
 however, to the condition of the trust herein mentioned, to wit : 
 I hereby authorize the trustee hereinafter named to receive, hold 
 and manage said property until my said daughter shall arrive at 
 the age of twenty-one years, or shall marry ; " it was held by the 
 supreme judicial court of Massachusetts, that the trustee had a 
 legal estate in the lands devised, but not a freehold, and that he 
 could not, therefore, maintain a writ of entry for the premises, but' 
 that he might maintain a suit of ejectment. {Fay v. Taft, 12 
 Cush. E. 448.) 
 
 Under the Massachusetts statutes, a writ of entry will lie against 
 a tenant at will, who refuses to surrender the premises on demand; 
 but if the tenant has never refused to yield possession, and is 
 ready and willing to vacate the premises, a different rule will pre- 
 vail. In the latter case the writ of entry cannot be maintained. 
 ( Wheelright v. Freeman, 12 Mete. E. 154. Dolley v. Miller, 2 
 Gray's E. 135.) 
 
 The owner of the fee of the land over which another has a right 
 of way may maintain a writ of entry against the person having 
 such right of way, who is in occupying the entire premises and 
 denying the demandant's seisin. {Morgan v. Moore, 3 Gray's E. 
 319. Ilancoch v. Wentworth, 5 Mete. E. 450.) One joint tenant 
 cannot have a writ of entry to foreclose a mortgage, notwith- 
 standing the provisions of the statute, that persons claiming the 
 same premises as joint tenants, tenants in common, or coparceners, 
 may all join, or any two or more of them may join in a suit for, 
 the recovery thereof, or any one may sue alone for his particular 
 share. ( Webster v. Yandeventer, 6 Gray's E. 428.) 
 
 The grantee of herbage or trees, if the right of the soil be not 
 in him also, cannot maintain a writ of entry to recover possession 
 
54: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of the land itself, against the grantor, oi* those claiming under 
 him. {Eohoboth v. Hunt, 1 Pick. E. 224.) 
 
 If land is devised in a will to certain persons, and trustees are 
 directed, by a codicil to the will, to receive the rents for a certain 
 number of years, the devisees have a suiEcient title to enable them 
 to maintain a writ of entry against a disseisor ; and the existence 
 of a lease of the land for j^ears, made by the trustees, will not 
 defeat such writ of entry. {Brewer v. Stevens, 13 Allen's R. 346.) 
 The undivided estate of a party in lands, in which the wife has a 
 homestead estate, may be recovered by writ of entry against the 
 wife in possession, and in such a case, it is competent for the court 
 to give such qualified judgment as may be necessary to secure 
 such wife in the possession of the homestead. {Castle v. Palmer, 
 G Allen's R. 401.) But lands conveyed to a married woman who 
 had children, and whose husband afterward, but prior to the 
 enactment of the statute of 1845, went into bankruptcy under the 
 act of Congress of 1841, cannot be recovered by a writ of entry 
 in the name of the husband and wife, if no conveyance has been 
 made by the assignee. {Parker v. Tirrell, 3 Allen's K. 15.) 
 
 In the state of Eliode Island there seems to be no statute par- 
 ticularly defining the character of the estate or property which 
 maybe recovered in ejectment; and consequently the common 
 law upon that subject is probably in full force in that state. It 
 is, however, provided by statute, that actions of ejectment or other 
 actions concerning any estate holden or claimed in coparcenary, 
 common or joint tenancy, when the possession of such estate 
 claimed is the object of the writ, the same may be commenced by 
 all or by two or more of the coparceners, tenants in common, or joint 
 tenants, or the same may be brought by each one for his particular 
 share of such estate. (Revised Statutes, ch. 203, sec. 1.) This 
 simply shows that the estate of coparceners, tenants in common, 
 and joint-tenants, may be recovered in ejectment in Rhode Island, 
 as at common law, except that at common law, tenants in common 
 cannot join as co-plaintiflPs in the action. 
 
 So also the statutes of Rhode Island recognize the common law 
 right of the mortgagee of lands to bring ejectment for the lands 
 mortgaged, after condition broken, although provisioa is made for 
 the relief of the mortgagor or the person entitled to the rio-ht of 
 redemption in certain cases, in the same action, that is, by a modi- 
 fied judgment in the action. (Revised Statutes, ch. 189, sec. 7.) 
 
FOR WHAT EJECTMENT WILL LIE IN CONNECTICUT. 55 
 
 By tlie statutes of Rhode Island it is also declared that no action 
 of ejectment shall be maintained unless the plaintiif has at the time 
 of the commencing the same a right of entry into the premises 
 claimed ; although it is made unnecessary for the plaintiff to prove 
 on the trial an actual entry jinder his title, and if he prove that he 
 is entitled to the estate as he claims in the premises, whether as 
 heir, devisee, purchaser, or otherwise, and also that he has a right 
 of entry therein, this is deemed sufficient. (Laws of 1857 to 
 1868, cii. 359, § 1.) 
 
 "When a mortgage is payable at a future day, with the interest 
 annually, the condition of the mortgage is broken by the non- 
 payment of the interest, equally as it would be by the non-payment 
 of the principal when due. Accordingly in such a case, the court 
 directed a conditional judgment in the action of ejectment brought 
 by the mortgagee after condition broken, for the possession of the 
 mortgaged premises, in conformity with the provisions of the 7th 
 section of chapter 189 of the Revised Statutes. {Carpenter v. 
 Carpenter, 6 E. I. E. 542.) And it has been held that a mort- 
 gagor in possession, whose interest in the mortgaged premises has 
 been levied and sold under an execution, may, in an action of 
 ejectment against him by the purchaser, protect his possession by 
 a lease for years from his mortgagor, whose mortgage was prior 
 to the levy ; and if this title to continued possession has occurred 
 pending the suit of ejectment, the court held, it may be pleaded 
 puis darrein. {Simmons v. Brown, 7 K. I. E. 427.) 
 
 In Connecticut, the common-law rule in respect to the character 
 of the estate which may be recovered in ejecttnent seems to be the 
 only recognized rule ; except that it is provided by statute that 
 whenever an estate in real estate shall be created by grant or 
 devise, upon express condition, and the reversion of such real 
 estate shall afterward, and before breach of such condition, by 
 grant or devise by the grantee or his heirs, or otherwise, be con- ■ 
 veyed to any other person or persons, according to law, such person 
 or persons, to whom such reversion shall be so conveyed, shall, on 
 breach of such condition, have the same right of entry upon such 
 real estate, and the same remedy for such breach, by entry, suit, 
 or otherwise, as the original grantor, or those who legally repre- 
 sent him, would have, if such reversion had not been so conveyed or 
 devised. (Gen. Stat. 1866, title 1, ch. 15, § 279.) And the statute 
 also provides for the relief of the defendant in the action of eject- 
 
56 ZAw o:f ejectment and adveese enjoyment. 
 
 ment instituted by the mortgagor of real estate, and also for the 
 relief of defendants in certain other cases in the action of disseisin 
 to recover the possession of lands. (Gen. Stat, title 1, ch. 15, §§ 
 280, 281.) It has been held that land below high-water mark may 
 be recovered by the riparian proprietor therein against a disseisor 
 in an action of ejectment, upon the common law principle that 
 where the property sought to be recovered is tangible, and an 
 entry can be made, and possession can be delivered by the sheriff, 
 ejectment will lie. {Nichols v. Lewis, 15 Conn. E. 137.) 
 
 The courts of Connecticut have held that one tenant in common 
 can maintain ejectment alone ; and that it makes no difference 
 that the plaintiff sues as a surviving partner for the possession of 
 land owned by the firm, as partnership property. {RoMnson v. 
 Roberts, 31 Conn. E. 145.) 
 
 The courts of Connecticut have also held that a mortgage, 
 though a form of a conveyance of the legal title, is, in substance, 
 only a pledge of the land for the mortgage debt, and the mort- 
 gagee is to be regarded as holding the legal title only for the pur- 
 pose of enforcing payment of the debt. It is therefore decided 
 that a second mortgagee can maintain ejectment against the 
 mortgagor, although there is an outstanding unsatisfied prior 
 mortgage. {Savage v. Dooley, 28 Conn. E. 411.) 
 
 So also it has been held, that where a debtor fraudulently con- 
 veyed his real estate, and then procured a mortgage of it to be 
 made by the grantor for his benefit, for much less than its value, 
 and for the fraudulent purpose of securing himself in the possession 
 of it against his creditors, took a lease from the mortgagee, under 
 which he retained possession, was held, independently of the 
 question (Whether the mortgage was fraudulent, that the debtor 
 could not set up the title of the mortgagee and his own tenancy 
 under it, against an action of ejectment brought by a trustee in 
 •insolvency, who had obtained a decree vesting the title in himself, 
 for the benefit of the creditors, subject to the rights, if any, of the 
 mortgagee, who took his mortgage without notice, during the 
 pendency of the suit in equity, and was not made a party to the 
 suit. {Birge v. Nock, 34 Conn. E. 156.) 
 
 In the state of New Jersey, there does not seem to be any 
 special provision by statute in respect to the cases in which eject- 
 ment can be maintained, except that provision is made for the 
 action in cases of landlord and tenant. (Elmore's Dig. 1855, p. 
 
FOR WHAT EJECTMENT WILL LIE IN PENNSYLVANIA. 57 
 
 419, § 9.) The action, therefore, in that state, can be bi'ouglit in 
 the same cases, and for the same things, as at common law. The 
 courts of that state have made numerous decisions in cases of 
 ejectment, but they do not seem to involve any principle which is 
 peculiar to the jurisprudence of the state. 
 
 By the laws of Pennsylvania, the writ of ejectment is directed 
 in all cases where lands, tenements or hereditaments are claimed, 
 and a full and eflfectual remedy is given iu such action. (Penn. 
 Digest of Laws of 1700-1861, page 364, § 4.) 
 
 In Pennsylvania, ejectment may be brought on a contract for 
 the sale of a mill, though the contract embrace other matters con- 
 nected with such sale. For example, a contract for the purchase 
 and sale of a mill and land, and embracing other matters con- 
 nected, in the contemplation of the parties at the time, with the 
 enjoyment and profit of the mill, will be considered an entire con- 
 tract, so as to enable the vendor to enforce performance of it by 
 ejectment, upon the legal title retained by him. {Carmalt v. Piatt, 
 7 Watts' E. 318. Irvine v. Buel, lb. 323.) So also the owner of 
 the soil may maintain ejectment for land in which others possess 
 an easement or right of way; for the freehold still remains in him. 
 {Gowper v. Smith, 9 Serg. & Rawle's R. 26. Vide also Chamhera 
 V. Farrys, 1 Yeates' E. 167.) 
 
 But ejectment does not lie, under the policy existing in Penn- 
 sylvania, by a widow to recover her interest in lands belonging to 
 her husband in his life-time and of which he died seised. Neither 
 does the action lie by the husband in his own name, to I'ecover 
 lands the title to which he claims in right of his wife. {Bralton 
 V. Mitohell, 7 "Watts' E. 113.) ISTor can the action of ejectment 
 be maintained to enforce the support of a testator's widow; charged 
 upon land devised to his son. {Craven v. Bleakney, 9 Watts' E^ 
 19.) If either ' does the action lie to enforce payment of rent, 
 reserved on the ground rent in fee. {Uenege v. Elliott, 9 Watts' 
 E. 258.) 
 
 But the action of ejectment may be maintained in the name of 
 the warrantee, although he may have no beneficial interest in the 
 land, and might not have known of the action. (Campbell v. Gal- 
 ireath, 1 Watts' E. 70.) And a cestui que trust, entitled to the 
 enjoyment of the possession of land, may maintain ejectment to 
 recover it in his own name, cither against a trustee or a stranger. 
 {Presbyterian Congregation v. Johnson, 1 Watts' & Serg. E. 9.) 
 8 
 
68 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In Pennsylvania, ejectment is an equitable action, and when- 
 ever chancery would execute a trust or decree a conveyance, the 
 courts of the state, with the instrumentality of a jury, will direct 
 a recovery in ejectment. {Peelles v. Reading, 8 Serg. & Kawle's 
 E. 484.) And a valid equitable title in this state is sufficient to 
 sustain the action of ejectment, and this is said to be upon the 
 ground that there is no court of chancery in the state. {Swayze 
 V. Burhe, 12 Peters E. 11. Sim.e's Lessee v. Irvine, 3 Dall. E. 
 425. But vide Carson's Lessee v. Boxidinot, 2 Wash. C. C. E. 33.) 
 And for the want of a court of chancery in the state, the action 
 of ejectment may be resorted to there, and can be maintained by 
 the vendee against the vendor, to enforce specific performance of 
 the agreement for the sale of land. {Henderson v. Hays, 2 Watts' 
 E. 150.) 
 
 It has been held that ejectment is almost the only action for 
 trying title to land in Pennsylvania. {Morris v. Vandoren, 1 
 Dallas' E. 67.) But the action will not lie for a mere privilege, 
 or incorporeal hereditament. The general rule is recognized in 
 Pennsylvania, as elsewhere, that ejectment will only lie for things 
 whereof possession may be delivered by the sherifi". The case of 
 common appendant or apjjurtenant is said to be in some degree 
 an exception ; but then the officer, by giving possession of the 
 land, gives possession of the common. {BlacFs Lessee v. Lrej)iurn, 
 2 Yeates' E. 331, 333.) 
 
 The action of ejectment may be brought in Pennsylvania 
 to enforce a lien or a charge on land {GaTbraith v. Fenton, 3 
 Serg. & Eawle's E. 359), although it has been held that the 
 action is not the proper remedy to recover a legacy charged on 
 land. What is required in such a case is a mode for raising a sura 
 of money out of the land. This may be done by an action 
 demanding the money and not the land ; by virtue of which the 
 land may be sold. But this cannot be done in ejectment ; not- 
 withstanding, the action of ejectment has been resorted to in 
 Pennsylvania as a means of compelling payment of money charged 
 on land, when there was no common-law remedy to accomplish 
 the same end. {Janse v. Wiley, 4 Serg. & Eawle's E. 509, 522, 
 528.) Eor the want of a court of chancery in Pennsylvania, the 
 owner of an equitable title is permitted to maintain ejectment to 
 recover it. ( Willing v. Brown, 7 Serg. & Eawle's E. 467. Schuyl- 
 Jcill Navigation Company v. Fai'r, 4 Watts & Serg. E. 374.) But 
 
FOR WHAT EJECTMENT WILL LIE IN PENNSYLVANIA. 69 
 
 an equitable estate is not sufficient to support an ejectment in the 
 circait court, notwithstanding the cause of action arises in the 
 state of Pennsylvania. {Carson v. JBoudinot, 2 Wash. C. C. R. 
 33.) In Pennsylvania, ejectment is substituted for a bill in chan- 
 cery ; and whenever chancery would execute a trust, or decree a 
 conveyance, the courts will direct a recovery. For example, the 
 action lies to enforce the specific performance of articles of agree- 
 ment ; and when the party entitled to a conveyance of land does 
 everything necessary to be done, in order to obtain a decree for a 
 specific performance, he stands, in Pennsylvania, in a situation to 
 support or defend an action for the possession of the land. {Peebles 
 V. Beading, 8 Serg. & Eawle's E. 484. Vincent v. Iloff, i ib. 301. 
 Marlin v. Willinh, 7 ib. 298. Earver v. Norris, 4 Binn. E. .77. 
 Griffith V. Cochrane, 5 ib. 105.) And ejectment being a substitute 
 for a bill in equity, in Pennsylvania, the action will lie to enforce 
 execution of articles of agreement on the part of a vendee who 
 has never been in possession of the land in dispute; and 'in a 
 proper case, the court will enforce the contract in such action. But 
 the action in such a case is. to be affected with all those consider- 
 ations that would affect a bill for a similar purpose, in the con- 
 templation of a chancellor. {Tyron v. Passm.ore, 2 Penn. E. 122. 
 Srawdy v. Brawdy, 4 ib. 158. Vide also Pennoch v. Freeman, 
 1 Watts' E. 408. Bishop v. Peed, 3 Watts & Serg. E. 264. 
 Hauberger v. Poot, 6 Penn. E. 112. Shaw v. Bayard, 4 ib. 257.) 
 
 A trustee may recover from a cestui que trust in ejectment in 
 Pennsylvania ; and every vendor, until he has executed a deed, is 
 considered in equity as the trustee of the vendee ; and he may en- 
 force the contract by ejectment. {Peed v. Murray, 11 Penn. E. 
 336.) But ejectment cannot be maintained by the vendor of land 
 against his vendor, or any person claiming under him, to enforce 
 payment of the purchase-money, when a conveyance has been 
 made, and a bond taken for the money. {Megargel v. Saul, 3 
 Wharton's E. 19.) 
 
 At the expiration of a lease for a definite period, the lessor may 
 bring ejectment, and it is immaterial that he has given notice to 
 quit in three months. {Evans v. Hastings, 9 Penn. E. 273. Pich 
 v. Keyser, 54 ib. 86.) But ejectment will not lie, under the laws 
 of Pennsylvania, for a life estate after the death of the tenant for 
 life. {Hamilton v. Whiteley Township, 12 Penn. E. 147.) Eject- 
 ment cannot properly be brought against administrators to compel 
 
60 LAW OF EJECTMENT AND ADVJUBSE ENJOYMENT. 
 
 specific performance of a contract of their decedent. The action 
 must be brought by the holder of the legal title in order to com- 
 mand a verdict against the equity of the purchase, and must be 
 against the purchaser or some one representing his title. {Thomp- 
 son V. Adams, 55 Penn. R. 479.) 
 
 "When a will directed land to be sold -without designating any 
 one to execute the power, the executors may maintain ejectment to 
 recover such land. {Kirlc v. Carr, 54 Penn. E. 285.) 
 
 When the vendee has paid a part of the purchase-money and 
 taken possession of the land, and dies without paying the balance 
 of the purchase-money, leaving a widow and children, one of whom 
 took out letters of administration and leaving more of the estate 
 than would pay the purchase-money, paid it, and took a deed from 
 the vendors "for himself and in trust for the widow and heirs," 
 under an arrangement that he should hold the land as his own and 
 pay the widow and heirs their shares of the estate ; the widow may 
 use her legal title to enforce the payment of the money due her 
 tmder the arrangement, and will be permitted to recover on filing 
 her release of her right in the land. (Eckels v. Stewart, 53 Penn. 
 E. 460.) 
 
 The heirs of a decedent may maintain ejectment for land of 
 which their ancestor died out of possession. ( Webster v. Webster, 
 53 Penn. R 161.) 
 
 Equity powers have been granted by the statutes of Pennsylva- 
 nia upon the courts of common pleas of the state; but this does 
 not take away the common law remedy by ejectment as a means 
 of compelling specific performance of a contract for land. (Cor- 
 son V. Mulvany, 49 Penn. R. 88.) 
 
 AVhen a boiler, engine and stack were erected on land of the 
 plaintiflf, at the joint expense of himself and the defendant, under 
 an agreement to use the same as a common source of power with- 
 out limitation as to time, the interests created thereby in the fix- 
 tures are held to be in the nature of real estate ; and if one of the 
 tenants in common exclude the other from the use and possession 
 of such fixtures, ejectment will lie to enforce the agreement. (^Hill 
 V. Hill, 43 Penn. R. 521.) 
 
 Although the proposition would seem to be too plain to require 
 judicial decision, nevertheless, the courts of Pennsylvania have 
 held, that under the laws of that state ejectment will not lie for a 
 life estate after the death of the tenant for life. {Hamilton v. 
 
FOR WBAT EJECTMENT WtLL LIE IN DELAWARE. 61 
 
 Whiteley Township, 12 Peun. R. 147.) This is the rule under any 
 jurisprudence, and whether the duration of the life estate is ma- 
 tured by the life of the lessee or of a third person ; for in either 
 case the estate would terminate with the life of the lessee, and if 
 the life of a third person is referred to as the duration of the estate, 
 of course, on the death of such third person before the death of the 
 tenant, the estate would be ended, and the tenant could not main- 
 tain ejectment for the land covered by the lease. 
 
 It has been also held by the courts of Pennsylvania that, under 
 their statutes, an action of ejectment can in no case be maintained 
 by a party in possession of the land in dispute. {Kribbs v. Down- 
 ing, 23 Penn E. 199.) 
 
 In the state of Delaware, the statute provides, that the legal 
 title to lands or tenements, wherever entry can be made, may be 
 tried in an action of ejeictment ; and no objection can be made to 
 the form of the action or to the right of the lessor of the plaintiff 
 to make the demise, if he could recover the premises in any form 
 of action. (Eevised Code of 1852, ch. 119, § 1.) 
 
 The title of a purchaser under a sheriff's sale of lands on 
 execution, before a deed is executed by the sheriff, is held not 
 sufficient to maintain the action of ejectment. The plaintiff's 
 title accrues from the sheriff's deed. It commences with the sale, 
 but is not perfected until a deed is executed ; and though he has 
 certain rights given him by the statutes of the state as to rent 
 from the time of sale and to the possession in a summary way, 
 the legal title is not in the purchaser until a deed is executed. 
 The sheriff seldom receives the purchase money, or, at least, all 
 of it, until the deed is made. The practice is to require a deposit 
 of two per cent at the time of the sale. The provision of the 
 Code is intended merely to do away with the old actions of assize 
 and writ of I'ight. {Doe v. Roe, 1 Harrington's E. 464.) 
 
 According to the law, as recognized by the courts in Delaware, 
 an action of ejectment cannot be maintained, on the ground of 
 possession alone, short of twenty years, against a mere trespasser 
 who enters without any color or claim of title and ousts the party 
 in possession, notwithstanding the rule to the contrary in some of 
 the other states, and particularly ih New York. The general rule 
 on the subject in Delaware always has been, that the plaintiff, in 
 an action of ejectment, must establish a legal title in himself to 
 the premises, and must recover on the strength of that title, and 
 
62 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 not on the weakness or insufficiency of the defendant's; and no 
 possessory right merely, short of twenty years' uninterrupted pos- 
 session, is sufficient there for that purpose. Such seems always to 
 have been the ruling and determination of the. courts of that state. 
 {Doe V. Eowell, 1 Houston's K. ITS.) And it has been held that 
 the defendant in peaceable possession, though without color of 
 title, may defend himself in ejectment on the weakness of the 
 plaintiff's title. {Lessee of Love v. Hill, 3 Harr. E. 530.) But 
 probably these authorities apply more to the question of the title 
 upon which the plaintiff will be permitted to recover in ejectment, 
 than to the question in respect to what things the action may be 
 brought to recover ; although they are not without their applica- 
 tion to the latter subject. 
 
 In Maryland, there seems to be no provision by statute in rela- 
 tion to the estate which may be recovered in ejectment, and 
 therefore the common law doctrine in this respect must be recog- 
 nized there. The courts of the state have often had the question 
 under consideration as to the particular property for which the 
 action may be brought, but generally, if not always, the question 
 has been settled upon the principles of the common law'. 
 
 However, in the state of Maryland, the distinction between 
 common law and equity, as known to the English law, has been 
 constantly preserved in its system of jurisprudence ; and the action 
 of ejectment is the only mode of trying a title to lands, and in 
 that action the lessor of the plaintiff' must show a legal title in 
 himself to the land he claims, and the right of possession under it, 
 at the time of the demise laid in the declaration, and at the time 
 ' of the trial. He cannot support the action upon an equitable 
 title, however clear and indisputable it may be, but must seek his 
 remedy in chancery ; nor is the defendant required to show any 
 title in himself; and if the plaintiff makes out & prima facie legal 
 title, the defendant may show an older and superior one in a 
 stranger, and thereby defeat the action. ( Vide Wilson's Lessee v. 
 Lnloes, 11 Gill & Johns. E. 351, 358. Hammond's Lessee v. Inloes, 
 4 Md. E. 140, 173.) 
 
 By a law of the state, an equitable interest may be seized under 
 a fe7-i facias, but it is held that this act does not convert the 
 equitable interest into a legal one in the hands of the purchaser ; 
 that he buys precisely the interest which the judgment debtor 
 had at the time the execution was levied ; and if he purchased an 
 
FOR WHAT EJECTMENT WILL LIE IN VIRGINIA, 63 
 
 equitable interest and desires to perfect his title, he must go into 
 equity, when the court will decree a conveyance to him from the 
 holder of the legal title, provided 'he shows that the debtor was 
 entitled to it at the time of the levy ; and that until such legal 
 title is thus obtained he cannot maintain an action of ejectment 
 against the party in possession. {Smith's Lessee v. MaCann, 24 
 How. U. S. K. 398.) 
 
 And it has been held by the courts of Maryland that the plaintiff 
 in ejectment in that state, in deducing his title, must show a grant 
 of the land, and a regular title from the grantor, or seisin of the 
 land, for which the ejectment was brought, and a dying seised of 
 the person imder whom the lessee of the plaintiff derived his title, 
 and a regular title from the person dying seised, or twenty years' 
 uninterrupted and exclusive possession of the land. {Plumer v. 
 Lane, 4 Har. & McHen. E.. 72.) And again, that, in order to a 
 recovery in ejectment, the lessor of the plaintiff must have a legal 
 title in the land at the commencement and trial of the action. 
 {Carroll v. Norwood'' s Heirs, 5 B[ar.& Johns. E. 164.) 
 
 By the statutes of Virginia, no writ of right, writ of entry, or 
 writ of formedon is allowed ; but it is provided, that the action of 
 ejectment is retained, and may be brought as heretofore, subject 
 to the provisions of the act, and that the action may be brought 
 in the same cases in which a writ of right might be brought, the 
 time of the enactment of the statute, and by any person claiming 
 real estate in fee or for life, or for years, either as heir, devisee, or 
 purchaser, or otherwise. (Code of 1860, title 40, ch. 135, §§ 1, 2, 38.) 
 
 It will be observed that the action of ejectment may be brought 
 in Virginia in about the same cases as in the state of ISTew York, 
 except that in Virginia, dower cannot be recovered in ejectment 
 before assignment ; and the mortgagee is not prohibited from 
 bringing the action to recover possession of the mortgaged prem- 
 ises after forfeiture by non-payment of the meney secured by the 
 mortgage, as he is in the state of New York. It is obvious, there- 
 fore, that most of the rules laid down by the courts of ISTew York 
 respecting the things for which ejectment will lie, are applicable to 
 the subject in the state of Virginia. 
 
 In Virginia, the owner of the fee subject to an easement by the 
 public may bring ejectment against a person who appropriates the 
 laud, or occupies it permanently, in any way which is not inci- 
 dental to the right of passage over it, on the principle that a pub- 
 
64 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 lie highway only vests in the commonwealth a right of passage, 
 while the freehold and the profits, snch as trees on it and mines 
 under it, belong to the owner of the soil, who has a right to all the 
 remedies for the freeliold, subject however to the easement. [Boiling 
 V. The Mayor, etc., of Petershurgh, 3 Eand. E. 563.) And a trustee, 
 holding the legal title, may maintain ejectment even after the trust 
 is satisfied ; although a cestui que trust, after the trust is satisfied, 
 may maintain ejectment, that does not deprive the trustee holding 
 the legal title of liis right to maintain such action. (Hopkins v, 
 Stephens, 2 Eand. E. 442.) So, also, a cestid que trust, after the 
 purposes of the deed have been satisfied, may maintain ejectment, 
 upon a demise in his own name, although the legal estate is still 
 in the trustee. {liopliins v. Ward, 6 Munf. E. 38.) It will be 
 observed, therefore, that the policy of Virginia, in respect to the 
 action of ejectment, varies a little from the policy of the common 
 law. 
 
 In the state of "West Yirginia, the legislature has recently 
 adopted a new code of laws, which possibly contains some special 
 provision in respect to the action of ejectment ; but the law has 
 not yet been published, and it is not, therefore, practicable, to 
 insert any of its provisions in this place. Should the new code 
 come to hand in time, however, all that is applicable will be given 
 in a subsequent part of this work, when the subject of the action 
 of ejectment in the several states shall be definitely considered. 
 
 In Ohio, the statute provides, that, in an action to recover real 
 property, it shall be sufficient, if the plaintifi" state, in his petition, 
 that he has a legal estate therein, and is entitled to the possession 
 thereof, describing the same as required by the statute, and that the 
 defendant unlawfully keeps him out of the possession ; and it is 
 declared to be unnecessary to state how the plaintiff's estate or 
 ownership is derived. (2 Eeviscd Statutes, 1860, ch. 87, § 558.) 
 From this provision of the statute, it is very evident that the plaint- 
 iff can bring his action fof the recovery of real property only when 
 he has a legal estate in the property claimed ; and the nature of the 
 property which can be recovered in ejectment must be the same as 
 at the common law. In other words, that the common law, in 
 respect to the things which may be recovered- in the action of 
 ejectment, is in full force in the state of Ohio. 
 
 In the state of Indiana, any person, having a valid subsisting 
 interest in real property, and a right to the possession thereof, may 
 
FOB WHAT EJECTMENT WILL LIE IN ILLINOIS. 65 
 
 recover the same by action, to be brought against the tenant in 
 possession ; if there is no such tenant, then against the person 
 claiming the title, or some interest therein. (2 R. S. of 1862, art. 
 29, § 592.) 
 
 If the defendant in the action make defense, it is made unneces- 
 sary to prove him in possession. (2 R. S. art. 29, § 59Y.) 
 
 If the interest of the plaintiff expire before the time in which 
 he could be put in possession, he will only be entitled to judgment 
 for damages. (2 E. S. art. 29, § 599.) 
 
 The plaintiff must recover on the strength of his own title, and 
 not on the weakness of his adversary's. (2 E. S. art. 29, § 606. 
 Vide Eldon v. Doe, eBlackf. E. 341.) 
 
 So, also, to enable the plaintiff in Indiana to recover in eject- 
 ment, he must have the legal title to the lands in dispute. {Allen 
 V. Smith, 6 Blackf. R. 527. Jared v. Goodtitle, 1 ib. 29.) And 
 so, also, in an action of disseisin, the plaintiff, as in the action of 
 ejectment, must have the legal title. {Moshier v. Smith, 3 Blackf. 
 K 132.) 
 
 But, it is not a prerequisite to the maintaining an action of eject-- 
 ment, that the plaintiff trace his title back to the government ; the 
 legal right of possession is held to be the subject of controversy in 
 the action, not the ultimate title to the land. {Doe. v. Wart, 1 
 Blackf. E. 133. Pierson v. Doe, 2 Ind. E. 123.) The plaintiff in 
 ejectment must, therefore, have the right of possession at the time 
 of the commencement of his action, or he must fail in the action, 
 even though the legal title is in him ; or, at least, this is the gen- 
 eral rule. {Jackson v. Hughes, 1 Blackf. E. 421.) 
 
 A joint demise of several lives of real estate is held to be suffi- 
 cient to support ejectment. {Eolinoe v. Doe, 6 Blackf., E. 85.) 
 
 The title of a tenant at will is sufficient to maintain an action 
 of ejectment under the laws of Indiana. {Buntin v. Doe, 1 Blackf. ' 
 R. 27.) And whenever a man has a right to enter and make a 
 lease, he has a right to maintain ejectment. {Duchane v. Goodtitle, 
 1 Blackf. E. 117.) 
 
 In Illinois, the statute provides that the action of ejectment may 
 be brought in the oases and in the manner theretofore accustomed, 
 subject to certain provisions in the act contained. The statute 
 also provides that the action may be. brought in the same cases in 
 which a writ of right may be brought by law to recover lands, 
 tenements or hereditaments, and by any person claiming an estate 
 9 
 
66 LAW Oli' EJECTMENT AND ADVERSE ENJOYMENT. 
 
 therein in fee or for life, either as heir, devisee or purchaser. And 
 a widow may also bring ejectment to recover her dower. But no 
 person can recover in ejectment by express provision of the statute 
 unless, he has at the time of commencing the action, a valid subsist- 
 ing interest in the premises claimed, and a right to recover the 
 same, or to recover the possession thereof, or of some share, interest 
 or portion thereof, to be proved and established at the trial. (1 
 Compiled Sfatutes, 1858, ch. 214, §§ 1, 2, 3.) 
 
 It will be observed that the Illinois statute declaring when eject- 
 naent is maintainable is similar to that of ISTew York. By the Illi- 
 nois act in relation to ejectment, the courts hold that the action 
 has become strictly a real action for the recovery of title, as well 
 as possession, and is not, technically even, an action for a tort. 
 {Guyer v. Woohey, 18 111. E. 536.) And the claimant must have 
 such an estate in the land in dispute as entitles him to the present 
 possession. {Batherton v. Joakum, 17 111. E. 288.) The action of 
 ejectment in Illinois is a legal action, and the plaintiff must show 
 a legal title to the premises claimed in himself at the time of the 
 commencement of the suit. {Pitkin v. Yaw, 13 111. E. 251. Joy 
 T. Berdell, 25 ib. 537.) 
 
 By the statutes of Michigan, the action of ejectment can be 
 brought in the same cases specified in the statutes of Illinois ; and 
 the statutes of the two states are nearly or quite similar. The 
 Michigan statute was probably copied from the Eevised Statutes 
 of New York in relation to the action of ejectment, and hence the 
 action can be maintained in the same cases in Michigan as in New 
 York. (2 Compiled Laws, 1857, ch. 134, §§ 1, 2, 3, or continuous 
 §§ 4554, 4555, 4556.) 
 
 In the state of "Wisconsin, the statute provides, that actions for" 
 the recovery of specific real property, or of the possession tliereof, 
 shall be commenced and proceeded in in the same manner as other 
 civil actions, except as provided in the act ; and that no person 
 can recover in such action unless he has, at the time of commenc- 
 ing the action, a valid subsisting interest in the premises claimed, 
 and a right to recover the same, or to recover the possession tliereof, 
 or of some share, interest or portion thereof, to be proved and 
 established at the trial. The statute makes it necessary for the 
 plaintiff to prove an actual entry under title, not the actual receipt 
 of any profits of the premises demanded ; it is made sufiicient for 
 him to show a right to the possession of the premises at the time 
 
FOB WHAT EJBCT3TENT WILL LIE IN WISCONSIN. 67 
 
 of the commencement of the action, as heir, devisee, purchaser, or 
 otherwise. (K. S,, of 1858, tit. 24, ch. 141, §§ 1, 2, 8.) 
 
 The statute further declares, that no action shall be maintained 
 by a mortgagee, or his assigns or representatives, for the recov- 
 ery of the possession of the mortgaged premises, until the equity 
 of redemption shall have expired. (R. S., tit. 24, eh. 141, § 28.) 
 
 Any person having the possession and legal title to land may 
 institute an action against any other person setting up a claim 
 thereto ; and, if the plaintiff shall be able to substantiate his title 
 to tlie land, the defendant will be adjudged to release to the 
 plaintiff all claim thereto. (E. S., tit. 24, ch. 141, § 29.) 
 
 Although the statute of Wisconsin does not permit a mortgagee, 
 or his assigns or representatives, to maintain an action of eject- 
 ment to recover possession of the mortgaged premises, until the 
 equity of redemption has expired, as fixed by the statutes of the 
 state ; yet, if he is lawfully in possession after condition broken, he 
 will not be turned out until his debt is paid. And the same rule 
 will apply in case of a purchaser of the mortgaged premises at a 
 sale under decree of foreclosure. The purchaser in such case suc- 
 ceeds to all the rights of the mortgagee, including the rights 
 acquired by lawful possession after condition broken, and an action 
 of ejectment can no more be maintained against him than against 
 the mortgagee. {Tollman v. Ely, 6 "Wis. E. 244. And vide Oil- 
 lett V. Eaton, lb. 30. Eennestj v. Farrell, 20 ib. 42.) 
 
 Under the Wisconsin statutes, the action of ejectment is held to 
 be a legal remedy, and can be maintained only by a person having 
 a legal title to the land. It is held not to be a proper remedy for 
 a cestui que ti^ust, or one who has only an equitable interest. 
 (Gillett V. Neganza, 13 Wis. E. 47-2. Eaton v. Smith, 19 ib. 537.) 
 
 A sheriff 's certificate of the sale of real estate upon an execution 
 issued to enforce a lien under the mechanic's lien law of 1842 is 
 not sufiicient to enable the purchaser to maintain ejectment for the 
 premises. He must wait until the expiration of twenty-seven 
 months after the sale, and then procure his deed from the sheriff, 
 when he will be in a situation to seek possession of the premises 
 purchased. {Dean v. Pyncheon, 3 Chand. E. 9.) 
 
 It is very. doubtful whether a mortgagee, or his assignee, after 
 the mortgage debt is past due, can maintain an action of ejectment 
 to recover the mortgaged premises against a stranger to the mort- 
 gagor, claiming' under a tax-deed. But it is quite certain, that he 
 
68 LAW OF EJECTMENT AJW ADVERSE ENJOYMENT. 
 
 cannot recover possession in sucli a case without showing that there 
 was a debt past due and unpaid secured by the mortgage ; and a 
 decree in foreclosure of the mortgage, when jurisdiction was not 
 obtained over the mortgagor, is not evidence of those facts as 
 against such stranger. {Fladland v. Delaplaine, 19 Wis. E. 459.) 
 The original owner, or those claiming under him, of land dedi- 
 cated to public use, may maintain ejectment against a permanent 
 incumbrancer or occupier, inconsistent with or repugnant >to the 
 purpose of the dedication or grant, and this rule will be applied 
 against a railroad company permanently occupying any part of a 
 street dedicated by the owner for such public street, for its road- 
 way. ( Weislrod v. The Chicago and North Western Railway 
 Company, 21 Wis. E. 602. Gardiner v. Tisdale, 2 ib. 153.) 
 
 A pre-emptor under the swamp land act of the state of Wis- 
 consin can maintain an action for the possession of the land pre- 
 empted. {Maury v. Smith, 10 Wis. E. 509.) 
 
 In the state of Minnesota, the common law rule, in respect to 
 the kind of property which may be recovered in ejectment, would 
 seem to prevail, except that the statute provides for the recovery 
 of dower in this action ; and a person in possession of real prop- 
 erty may sometimes bring the action to determine an adverse 
 claim thereto. (Compiled Statutes, 1858, ch. 64, §§ 1, 3. Eevi- 
 sion of 1866, ch. 75, §§ 1, 3.) 
 
 It is held in Minnesota, that an action of ejectment may be 
 brought in favor of a town or city to recover possession of prem- 
 ises dedicated to the public for a public square, against a person 
 having and claiming exclusive possession thereof. (The City of 
 Winona v. Euff, 11 Minn. E. 119.) 
 
 In the state of Iowa, any person, having a valid subsisting in- 
 terest in real property, and right to the immediate possession 
 thereof, may recover the same by action, which may be brought 
 against any person acting as owner, landlord, or tenant of the 
 property claimed ; and when the defendant makes defense, it is 
 not necessary to prove him in possession of the premises. But 
 the plaintiff must recover on the strength of his own title. (Eev. 
 Laws of 1860, ch. 144, §§ 3569, 3575, 3591.) 
 
 So, also, an action of a similar nature may be brought by one 
 having a reversionary interest, or by one either in or out of pos- 
 session, against another who claims title to real property, although 
 the defendant may not be in the possession thereof, for the piirpose 
 
FOR MTSAT EJECTMENT WILL LIE 7JV" IOWA. 69 
 
 of quieting the question of title. (E. L., ch. 144, §§ 3601, 
 3602.) 
 
 An action of ejectment may be maintained for the recovery of 
 dower before admeasurement, or by a tenant in common, or joint 
 tenant of real property against his co-tenant ; although in such 
 action the plaintiff is required to show, in addition to his evidence 
 of right, that the defendant either denied the plaintiff's right, or 
 did some act amounting to such denial. (E. L., ch. 144, § 3605.) 
 
 The action may be brought under these enactments against 
 persons not in possession of the premises, against lain who acts 
 as owner or landlord, 'and a person may act in either of these 
 capacities, without being in possession. But it should appear, by 
 evidence or by the pleadings, that the defendant acted as owner 
 or tenant of the property claimed ; and if as tenant, it should 
 appear that he was in possession of the preniises at the commence- 
 ment of the action ; for in this particular the action is assimilated 
 to that of ejectment. {Kerr^. Leighton, 2 Green's E. 196, 199.) 
 
 In an action in Iowa to recover the possession of real property, 
 brought by the person holding the legal title, previous to the 
 revision of 1860, an equitable title is no defense against the legal 
 one. "Where the vendee took possession of real estate, with the 
 consent of the vendor, and failed to pay the purchase-money in 
 accordance with the terms of the contract, the vendor was allowed 
 to sustain an action against the vendee, to recover the possession, 
 without returning so much of the consideration ashad been paid, 
 or tendering to the vendor his notes for the pjirchase-money. 
 {Page v. Cole, 6 Iowa E. 153. Alleyn v. Johnson, 13 Iowa E. 
 604. Abbott V. Chase, Vo. 453. Farley y. Goochen, 11 ib.,570. 
 Ilarman v. Steinman, 9 ib. 112.) 
 
 But since the revision of 1860, this rule no longer prevails. As 
 the law now stands, an equitable defense may be interposed in a 
 proceeding at law to recover the possession of real estate. Not 
 only so, but in actions strictly legal, the defendant may have posi- 
 tive or affirmative relief for matter purely equitable, in a case 
 properly stated, by way of a counterclaim or cross-demand. For 
 example, in an action to recover real estate, if the defendant has 
 an equitable title to the land, and has done what is requisite to 
 entitle him "to a deed, he may, in setting up such equity, ask that 
 his title be perfected by a conveyance ; and so also, in such an 
 action, the defendant may state in his answer, by way of counter- 
 
YO LAW OF EJECT3IENT AND. ADVEBSM ENJOYMENT. 
 
 claim, a contract to convej^ the real estate, and ask a specific prefer- 
 ance. {Rozierz v. Van Dam, 16 Iowa R. 175, 178.) 
 
 A person owning an undivivided interest in land may maintain 
 his action of right to the extent of his interest. {Hughes v. Molli- 
 day, 3 Greene's R. 30.) 
 
 Although an action in the nature of an action of right may 
 be brought to quiet title to real property, under the statutes of 
 Iowa, yet an action to quiet title against a party claiming only a 
 lien will not lie under the statute, but should be brought in 
 equity. {Fijervary v. Sanger, 9 Iowa K. 159.) 
 
 But it is unnecessary to examine further in this place, the 
 question as to the particular kind of property which may be recov- 
 ered in the action of ejectment under the local policy of the 
 several states, from the fact, that, as a general thing, the common 
 law upon that subject is still in force, and the cases in which the 
 action can be maintained by the statutes of the several states will 
 be fully examined in another place. « 
 
 CHAPTER lY. 
 
 Oir THE TITLE WHICH WILL SUPPOET THE ACTION OF EJECTMENT. 
 
 It is a maxim of the law that the party in possession of lands 
 is presumed to have a valid title thereto, and this presumption 
 can be overcome only by proving title out of such party. Indeed, 
 it has been said that possession of real estate is prima facie evi- 
 dence of the highest estate in the property, that is, a seisin in fee. 
 {Hill V. Draper, 10 Barb. R. 454. The People v. Van Nostrand, 9 
 Wend. R. pO. Keane v. Cannovan, 21 Cal. R. 291. Hutchinson 
 v. Perley, 4 ib. 33. HicTcs v. Davis, lb. 67. Plume v. Seward, 
 lb. 94. Rolinoe v. Doe, 6 Blackf. R. 85. GilUtt v. Eaton, 6 
 "Wis. R. 30. Gardiner v. Tisdale, 2 ib. 153. Jayne v. Price, 
 5 Taunt. R. 326.) Ejectment is a possessory action, and possession 
 is always presumption of right, and it stands good, until other 
 and stronger evidence destroys that presumption. This presump- 
 tion of right every possessor of land has, in the first instance, and 
 after a continued possession for the period prescribed by statutes 
 of limitation, under pretense or claim of right, the actual posses- 
 sion ripens into a right of possession which will toll an entry. 
 
WRAT TITLE WILL SUPPORT EJECTMENT. 71 
 
 But until the possession of the tenant has become so matured, it 
 would seem to follow, that if the claimant shows a prior possession, 
 and upon which the defendant entered without its having been 
 formally abandoned, as derelict, the presumption which arose from 
 the tenant's possession is transferred to the prior possession of the 
 claimant, and the tenant, to recall that presumption, must show a 
 still prior possession, and so the presumption may be removed 
 from one side to the other, toties quoties, until one party or the 
 other has shown a possession which cannot be overruled, or puts 
 an end to the doctrine of presumptions founded on mere possession, 
 by showing a regular legal title, or a right of possession. 
 
 Blackstone lays down the principle, that if B, the wrong-doer, 
 dies seised of the land, his heirs have not only a iare possession, 
 but an apparent jus possessionis, or right of possession. (3 Black. 
 Com. 176-178.) Bunnington says, the " law presumes the pos- 
 session transmitted from the ancestor to the heir to be a rightful 
 possession, until the contrary is shown ; and, therefore, the mere 
 entry of him who has the right will not be allowed to evict the 
 heir." (Runn. on Eject. 12.) Buller lays down the same doc- 
 trine : " If the plaintiff prove that A was in possession of the 
 premises in question, and that his lessor is heir to A, it is prima 
 facie / for it shall be intended that A had seisin in fee till the 
 contrary appear." (Bull. N. P. 103, 109.) But this doctrine needs 
 to be qualified a little. Undoubtedly, if a person be found in pos- 
 session of land, claiming it as his own in iee,iih,jprima facie 
 evidence of his ownership and seisin of the inheritance. It is not, 
 however, the possession, but the possession accompanied with the 
 claim of the fee, that gives this effect, by construction of law, to 
 the acts of the party. Possession, per se, evidences no more than 
 the mere fact of present occupation by right ; for the law will not 
 presume a wrong: and that possession is just as consistent with 
 a present interest under a lease for years, or for life, as in fee. 
 From the very nature of the case, therefore, it must depend upon 
 the collateral circumstances what is the quality and extent of the 
 interest claimed by the party ; and to that extent, and that only, 
 will the presumption of law go in his favor. {Za Frcmibois v. 
 Jackson, 8 Cow. B. 603. Adams v. Quier, 30 Miss. E. 397. Bicard 
 V. Williams, 7 Wheat. B. 59. Jackson v. Porter, Paine's E. 457.) 
 And it may be affirmed that it is necessary for a claimant in 
 ejectment to show in himself a good and sufficient title to the 
 
72 LAW OF EJE0T3IENT AND ADVERSE ENJOYMENT. 
 
 lands in disijute. The party ckiming the right to the lands must 
 recover, if at all, on the strength of his own title, and not on the 
 defects in that of his adversary. This is an elementary principle 
 in the action of ejectment, and it has been reiterated over and 
 over again by the courts. The claimant in the action will not be 
 assisted by the weakness of the defendant's claim, because the 
 possession of the latter gives him a right against every person who 
 cannot establish a title. This is the general rule, in respect to 
 which there is no exception, and it has been establisli'ed by a world 
 of authorities, both in this country and in England. The party 
 ■who would change the possession must make out a title, upon the 
 strength of which he must recover, if at all. {Boe v. Harvey, 
 4: Burr. K. 2484. Doe v. Barber, 2 Term K. 749. Elder v. Doe, 
 6 Blackf. E. 341. Iluddleston v. Garrett, 3 Humph. E. 629. 
 
 Winn V. Cole, "Walker's E. 119. Hoe v. Harvey, 4 Binney's E. 
 2487. Colston v. McKay, 1 Marsh. E. 251. Covert v. Irwin, 3 
 Serg. & Eawle's E. 283. Smith v. Lorrillard, 10 Johns. E. 339. 
 People y. Leonard, 11 ib. 504. Dill v. Draper, 10 Barb. E. 454. 
 Atherton v. Johnson, 2 JST. IT. E. 35. Goulding v. Clark, 34 ib. 
 148. Brady v. Ilennion, 8 Bosw. E." 528. Ar'mstrong v. Pier- 
 son, 4 Greene's [Iowa] E. 45. Boylan v. Meeker, 4 Dutch. E. 274.) 
 But, although the general rule in actions of ejectment is, that 
 the claimant must recover upon tlie strength of his own title, as 
 above stated, this general principle has been so far modified, that, 
 when the owner of the true title neither objects nor consents 
 to the jDossession of either party, the court regards the better right, 
 as between the parties, to be vested in the first possessor, and 
 grantees claiming througli him. {Hvlibard v. Barry, 21 Cal. E. 
 321. Vide Burenius v. Coffee, 14 ib. 91.) And when no legal 
 title is shown, the party showing the prior possession will be held 
 to have the better right. {Shultz v. Arnot, 33 Missouri E. 172. 
 
 Wilson V. Palmer, 18 Texas E. 592. Hutchinson v. Perley, 
 
 4 Cal. E. 33. Bergnette v. Gaulfield, Ib. 278. Potter v. Knowles, 
 
 5 ib. 87. Turner v. Aldrige, 1 McCalVs C. C. E. 229. Wagle v. 
 Macy, 9 Cal. E. 426. Bird v. Lisbros, Ib. 1. Shumway v. 
 Phillips, 22 Penn. E. 135. Tappscott v. CoUs, 11 Gratt. E. 172. 
 Inns V. Nunn, 12 Geo. E. 469. Best on Presumptions, 87.) 
 
 h- prior possession '\%\vSi<A&ni to entitle a party to recover in 
 an action of ejectment against a mere intruder or wrong-doer, or 
 a person subsequently entering without lawful right, if the action 
 
WHAT TITLE WILL SUPPORT EJECTMENT. Y3 
 
 to regain the prior possession be brought within a reasonable time ; 
 if, however, there has been delaj' in bringing the suit, the anim.us 
 revertendi must be shown, and the delay must be satisfactorily- 
 accounted for, or the prior possessor will be deemed to have aban- 
 doned his claim to the possession. And it has been accordingly held, 
 that, where there was a prior possession of eleven years, and then 
 an entry by the defendants claiming under a title adverse to such 
 possessory title, the omission to bring a suit for thirteen years, 
 with knowledge of the adverse entry and continuance of posses- 
 sion under it, would authorize a jury to find an abandonment of 
 claim by the prior possessor. ( Whitney v. Wright, 15 Wend. E. 
 171.) But when the lessor of the plaintiff, and those under whom 
 he claimed, had been in possession of the land in dispute from 
 1805 to 1821 or 1822, when the plaintiff's tenant left the premises, 
 and the defendant entered on the vacant possession in December, 
 1822, without any claim or color of title, it was held that the 
 plaintiff was entitled to recover on the strength of his prior pos- 
 session ; but the reason why the premises had been left vacant was 
 explained by proving that the plaintiff did not know his tenant 
 had left the property until he found the defendant in possession. 
 {Jackson v. Dunn, 5 Cow. E. 200. Vide Livingston v. Walker, 
 7 ib. 637.) 
 
 The plaintiff, in an action of ejectment, must not only show a 
 complete title in himself to the land in dispute, but he must iden- 
 tify himself in accordance therewith ; and where the judge at 
 nisiprius instructed the jury that, in the absence of any proof 
 of title to the land in controversy on the part of the defendant, 
 he had no right to complain of any adjustment between the lessor 
 of the plaintiff and the person through whom the lessor of the 
 plaintiff claimed as to the particular land the vendee of the lessor 
 designed conveying, and that the land he designed conveying was 
 in fact that which was actually conveyed, the court in hanco held 
 the instruction to be erroneous. {MoEaven v. MoGuin, 9 Smedes 
 & Marsh. E. 34.) 
 
 But it is not necessary that the plaintiff show a good and valid 
 title to the land in dispute against all the world. It is only nec- 
 essary that he prove a good title and a right to recover as against 
 the defendant. It is enough that he has a title which is either in 
 itself good against all the world, or good against the defendant by 
 estoppel. {Garrett v. Lyle, 27 Ala. E. 286. Clark v, Diggs, 6 
 10 
 
74: LAW OF MJECTMENT AND ADVERSE ENJOYMENT. 
 
 Iredell's E. 159.) And the rule that the plaintiff must recover on 
 the strength of his own title, and not on the weakness of that of 
 his adversary, cannot be made available by a defendant againSt a 
 plaintiff whom he has fraudulently induced to purchase a weak 
 title. {Lane v. Reynard, 2 Serg. & Eawle's E. 64. But vide, 
 contra, Walker^s Lessee v. Coulter, Addison's E. 390.) 
 
 The action of ejectment may be maintained on a title to land by 
 estoppel. There can be no doubt of this proposition, and it has 
 been expressly so held in a case involving the precise question in 
 the supreme court of the United States. {Stoddard v. Chambers, 
 2 How. U. S. E. 284.) 
 
 It is not indispensable that the plaintiff in an action of ejectment 
 should show a perfect indefeasible estate in fee simple, to authorize 
 a recovery against one who can establish no legal right either of 
 property or possession. {Lewis v. Gogueth, 3 Stewart & Porter's 
 E. 184.) But possession should not be ousted without a clear title 
 in the other party, especially when it has been upheld bj' the state 
 tribunals. {PrestorCs Heirs v. Bowman, 6 Wheat. E. 580.) And 
 a plaintiff in ejectment who has no title whatever cannot re- 
 cover, though he sue for the use and benefit of another who has 
 tlie title. {BrooMng v. Desmond, 27 Geo. E. 58.) But a defend- 
 ant in ejectment who shows no title to the lands in dispute cannot 
 take advantage of technical imperfections in the plaintiff's title. 
 {MoAlister v. Williams, 1 Turn. E. 334. Zoringue v. Williams, 
 15 La. An. E. 76.) And when the plaintiff in ejectment shows a 
 connection between his title and the title of the person in whose 
 name he sues, it will be considered that he is authorized to use 
 the name of the latter in the action. {Adams v. McDonald, 29 
 Geo. E. 571.) Of course, it cannot avail the plaintiff any thing 
 to shoiv that some third person has a better right to the premises 
 in dispute than the defendant, unless he can connect himself in 
 some way with the title of such third person ; and the same rule 
 will apply to the defendant in an action of ejectment. ( Vide 
 Bailey v. March, 3 N. H. E. 274. People of Enfield v. Permit, 
 8 ib. 512.) "When an individual has the right of mining on the 
 land of another, he may maintain ejectment for the land against 
 an intruder. {Turner v. Reynolds, 23 Penn. E. 215.) », 
 
 The claimant in an action of ejectment must not only have a tiile 
 to the lands in dispute, but he must be clothed with the legal title 
 to such lands ; an equitable title, as a general rule, will not answer 
 
WHAT TITLE WILL SUPPORT EJECTMMNT. 75 
 
 the purpose. It is usually indispensable to the plaintiff's right to 
 recover in the action, that he establish in himself a legal title to 
 the premises at the time of the commencement of the action ; and 
 this doctrine is peremptory, except in those states wliere thoy have 
 no courts of equity, or where the statutes of the state liave changed 
 an equitable into a legal estate. {RoMnson v. Cam.j>hell, 3 Wheat. 
 E. 212. Fenny. Jlolme, 21 Row. 11.8.11.481. Iliokey y. Stew- 
 art, 3 ib. 750. Agricultural Bank of Mass. v. liice, 4 ib. 225. 
 Carson v. JBoudinot, 2 Wash. C. C. E. 3^ Jackson v. Dermont, 
 9 Johns. E. 60. Wright v. Douglas, 3 Barb. E. 554. Winn v. 
 CoWs Heirs, Walker's E. 119. Carroll v. Norwbod\<i Heirs, 5 
 Harr. & Johns. E. 164. Hammond v. Tmlois, 4 Md. E. 138. Cre- 
 sap V. Hutson, 9 Gill's E. 269. The State v. The State Bank, 5 
 Ind. E. 353. Jay v. Burdell, 25 111. E. 537. Williaras v. Harts- 
 horn, 30 Ala. E. 211. Moody v. Farr, 33 Miss. E. 192. Lauris- 
 sini V. I>oe, 25 ib. 177. Deisson v. MoLands, 12 Geo. E. 166.) 
 This principle is so fixed at common law, that a trustee may main- 
 tain ejectment against his own cestui que trus't^ to recover posses- 
 sion of the trust property ; and this doctrine has been recognized 
 by the courts of the American States. {Jackson v. Fierce, 2 Johns. 
 E. 226. Feach v. Beach, 14 Vt. E. 28. Matthews v. Ward, 10 
 Gill & Johns. E. 456. Gillette v. Traganm, 13 Wis. E.'472. Fa- 
 ton T. Smith, 19 ib. 557. And vide Moore v. Bxirnet, 11 Ohio E. 
 334.) It has been held, however, that when the consideration for 
 the land has been paid by the cestui que trust, there was a result- 
 ing trust in his favor, so that he would be considered as possessing 
 the equitable estate, and the legal also, so far as to enable him to 
 maintain an action of ejectment, for the land thus held. {North 
 Hempstead v. Hempstead, 2 Wend. E. 109.) And it has also been 
 held, that, after the purpose of the trust-deed has been satisfied, the 
 cestui que trust may maintain ejectment upon a demise in his own 
 name, although the legal estate is still in the trustee. {Hopkins v. 
 Ward, 6 Munf. E. 38.) But the rule at common law, and in all 
 of the States which have preserved the distinction between legal 
 and equitable titles to land, is, that the plaintiff in ejectment must 
 show a legal title in himself to the land he claims, and the right 
 of possession under it, at the time of the demise laid in the decla- 
 ration, and at the time of the trial. He cannot support the action 
 upon an equitable title, however clear and indisputable it may be, 
 but must seek his remedy in chancery. But in those states where 
 
76 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 t 
 
 there is no court of equity, the courts of common law necessarily 
 deal with equitable interests as if they were legal, and exercise 
 powers over them which are unknown to courts of common law, 
 where a separate chancery jurisdiction is established ; and in such - 
 states the action of ejectment may be maintained upon an equita- 
 table title; and it ought to be stated that, as the title to real prop- 
 erty, whether legal or equitable, and the mode of asserting that 
 title in courts of justicCj depend altogether upon the laws of the 
 state in which the land is situated, it is important, in all cases in- 
 volving questions of local law, that the statutes of the state and 
 the decisions of the state tribunals be examined. 
 
 In order that an action of ejectment in favor of several plaintiffs 
 be sustained, all must show a legal title to the land in contro- 
 versy, and the right to the immediate possession tliereof, not only 
 at the time of the commencement of the action, but also at the 
 time of the trial and judgment. {Cheney v. Chenerj, 26 Vt. K. 
 606. Alden v. Grove, 18 Penn. E. 377.) And title acquired after 
 the commencement of the action will in no case entitle the plain- 
 tiff to recover. {Vide McCoole v. Smith, 1 Black's U. 6. E. 454. 
 Baylor v. JSTef, 3 McLean's E. 302.) 
 
 In the time of Lord Mansiield, the court of king's bench 
 adopted a different rule ■ft'om that which had previously existed in 
 England, and exercised a species of equitable jurisdiction in the 
 action of ejectment; accordingly, in one case a mortgagee -was 
 permitted to maintain ejectment against a tenant, claiming nnder 
 a lease granted prior to the mortgage, such mortgagee having 
 given notice to the tenant that he did not intend to disturb the 
 possession, but only to get into the receipt of the rents and profits 
 of the estate. {Keech v. Hall, Doug. E. 21.) In other cases, the 
 legal estate of a trustee was not allowed to be set np against the 
 cestui que trust, and in one case at least, an agreement for a lease 
 was held tantamount to a lease, and in still another case, it was 
 held that a reversioner could recover his reversionary interest in 
 ejectment, subject to a lease and immediate right of possession in 
 another. (Adams on Eject. 33.) But those cases have all been 
 overruled, and the action of ejectment in England, as it generally 
 does in this country, now rests upon the legal title to the lands in 
 dispute. It is the settled doctrine of the supreme court of the 
 United States, that no action of ejectment will lie on an entry 
 made with the register and receiver of the land office, and upon 
 
WHAT TITLE WILL SUPPORT EJECTMENT. Y7 
 
 the principle that such entry is merely an equitable title upon 
 which the action cannot be maintained. {Hooper v. Scheimer, 23 
 How. U. S. E. 325.) 
 
 In connection with the discussion of thfe title necessary to sup- 
 ' port the action of ejectment, it may be asserted that it is not 
 sufficient that the claimant in such action have a good title, but 
 he must also be entitled to the possession of the lands which he 
 seeks to recover. The action of ejectment is a possessory action, 
 and if the naked fee is in the claimant, it by no means follows 
 that he is entitled to recover the possession oT the land claimed. 
 To entitle himself to recover, he must have the right of possession ; 
 and whatever takes away this right of possession, will deprive 
 him of the remedy by ejectment. This is the rule laid down by 
 Lord Mansfield a hundred years ago in a casein the king's bench, 
 in which he said : " Ejectment is a possessory remedy, and only 
 competent when the lessee of the plaintiff may enter ; and every 
 plaintiff in ejectment must show a right of possession as well as 
 of property." {Atkins v. Harde, 1 Burr. E. 119.) And in a case 
 reported by Durnford and East, it was held, that, although an out- 
 standing satisfied term may be presumed to be surrendered, yet 
 an unsatisfied term, raised for the purpose of receiving an annuity, 
 cannot, during the life, of the annuitant ; and may be set up as a 
 bar to the heir at law, even though he claim only subject to the 
 charge ; thereby showing clearly that the plaintiff must have, not 
 only the legal title, but a clear present right to the possession of 
 the premises ; or he cannot recover in an action of ejectment. 
 {Doe V. Staple, 2 Durn. & East's R. 684.) So in another case, 
 Baily, Justice, says : " An action of ejectment, which from first 
 to last is a fictitious remedy, is founded on the pi-inciple that the 
 tenant in possession is a wrong-doer ; and, unless he is so at the 
 time the action is brought, the plaintiff cannot recover." {Doe v. 
 Jackson, 2 Dowl. & Eyl. E. 523.) The doctrine of those cases in 
 England have been expressly recognized by the highest courts of 
 this country, where it has been declared that the purpose for which 
 the action is raa;intained or brought is, not to try the mere abstract 
 right to the soil, but to obtain actual possessioUj and that there- 
 fore the claimant must in all cases show a right of entry or a right 
 of possession. {City of Cincinnati v. Whitens Lessee, 6 Peters E. 
 431. Hylton v. Brown,^! Wash. C. C. E. 204. Owen v. Fowler, 
 24 Gal. E. 192. Owen v. Morton, lb. 373. Batterton v. Joakum, 
 
78 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 17111. E. 288. Daniel Y. Le Fever,19 Axk.'R. 201.) In a word, 
 the claimant in an action of ejectment must not only have a legal 
 title to the lands in dispute, but he must have the right to the 
 possession of the premises at the time of the commencement of 
 the action ; and a clear title in the plaintiff, without a right of 
 entry or a right by possession, will not answer the purpose. 
 
 But it must be remembered that title and seisin are always con- 
 sidered to be united until a disseisin is shown. This doctrine is 
 as old as Littleton himself, and the rule is well established in this 
 country as well as m England. {Doe v. Butler, 3 "Wend. E. 149.) 
 Deeds, patents, and even acts of parliament, may be presumed to 
 support the long and uninterrupted possession of a right or claim 
 of right ; but a conveyance will never be presumed to defeat the 
 claim of a person showing a good paper title, unless there has been 
 an adverse possession or enjoyment under claim of right, in 
 accordance with the fact presumed. Lord Ellenborough, in I'ela- 
 tiou to a presumption of a re- conveyance, says: "Presumptions 
 of this sort, when fit to be made, are always made in favor of the 
 possession of those who are rightfully entitled to it." (Keene v. 
 Deardon, 8 East's E. 263.) 
 
 The rule of presumption is ut res rite acta est, and is applied, 
 whenever the possession of the party is rightful, to invest that 
 possession with a legal title. Such a presumption will be made 
 when it is necessary to clothe a rightful possession wilh a legal 
 title ; but the court must see that there is nothing but the form 
 of a conveyance wanting. But this presumption in favor of a 
 grant against written evidence of title can never arise from the 
 mere neglect of the owner to assert his right, when there has been 
 no adverse title or enjoyment by those in whose favor the grant is 
 to be presumed; for the obvious reason that the presumption 
 against the person showing title, which arises from the delay in 
 asserting his title, is equally balanced by the like presumption 
 arising from' the same delay on the part of the supposed grantee. 
 {Schauher v. Jackson^ 2 Wend. E. 14, 35-38. And vide Daniel v. 
 North, 11 East's E. 372.) 
 
 Much abstruse learning has been expended in the discussion of 
 the principles by which disseisin and descents cast, are governed ; 
 but from the legislation now in force, both in this country and in 
 England, respecting the rights arising from adverse possession, 
 any extended notice of the subject in this treatise is regarded as 
 
WSAT CONSTITUTES A DISSEISIN. 79 
 
 superfluous, if not out of place. A brief reference to the subject 
 here will suffice ; the general doctrine of adverse enjoyment will 
 be discussed in another place. 
 
 Disseisin is the ouster- or turning a person out of possession of 
 a freehold estate ; or, as the term is used in the English law, it is 
 when a man enters into any lands or tenements, when his entry is 
 not congeable or lawful, and otcsts him who has the freehold. Dis- 
 seisin always imports a wrongful putting of another out of posses- 
 sion. It differs from an abatement, which is the entrance of a 
 stranger into lands of which an ancestor died seised, before the 
 heir has entered; so that there is not properly an actual ouster 
 committed of the person that was seised of the freehold, as in the 
 case of a disseisin ; but the entry of the person who has the title 
 to the freehold is prevented. So also a disseisin differs from an 
 intrusion, which is when an ancestor dies seised of an estate of 
 inheritance expectant on an estate for life, and then the tenant for 
 life dies, and between the death of the tenant and entry of the 
 heir, a stranger interposes and intrudes, and so gets possession of 
 the freehold ; so that it is rather a prevention of the heir's entry, 
 than an actual ouster of hiin of his freehold. But disseisin is the 
 unlawful turning another out of the possession of lands in which 
 he has an estate in fee or for life ; the person who turns the other 
 out is called the disseisor ; and if the disseisor dies in possession 
 it then presents a case of descent cast. It has been decided in 
 our courts, that to constitute a disseisin, upon which a descent 
 may be east, it must be commenced by wrong, and founded on an 
 ouster of the true owner. There must be a disseisin in fact. The. 
 rightful owner must have been expelled, either by violence or by 
 some act which the law regards as equivalent in its effects. A 
 mere entry upon another is no disseisin, unless it be accompanied 
 with expulsion. Disseisin is an estafe gained by WKong and 
 injury; and therein it differs from dispossession, which may be 
 right or wrong. {Doe v. Thompson, 5 Cow. E. 3Y1.) 
 
 Disseisin, according to the definition given by Mr. Preston, " is 
 the privation of seisin. It takes the seisin or estate from one man 
 and places it in another. It is an ouster of the rightful owner 
 of the seisin. It is the commencement of a new title, producing 
 that change by which the estate is taken from the rightful owner 
 and placed in the wrong-doer. Immediately after a disseisin, the 
 person by whom the disseisin is committed has the seisin, or 
 
80 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 estate, and the person on whom this injury is committed has 
 merely the right or title of entry. * * As soon as a disseisin 
 is committed, the title consists of two divisions : first, the title under 
 the estate, or seisin; and secondly, the title under the former 
 ownership." (Preston's Abst. 284.) 
 
 Descents which take away entries are, when any on.e seised by any 
 means whatsoever of the inheritance of a corporeal hereditament, 
 dies, whereby the same descends to his heir ; in this case, however 
 feeble the right of the ancestor might be, the entry of any other 
 peraon who claims title to the freehold is taken away ; and he 
 cannot recover possession against the heir by any summary method, 
 but is driven to his action to gain a legal seisin of the estate. The 
 right of entry may be tolled, or taken away by a descent cast, in 
 cases of abatement, intrusion and disseisin. (3 Black. Com. 176.) 
 
 By the common law, if an abater, or intruder, or disseisor, died 
 in peaceful possession, the descent to the heir gave to him a right 
 of possession, and took away from the true owner his right of 
 entry, although such death happened immediately after the wrong- 
 ful acquisition of the lands ; but this doctrine has been greatly 
 modified, if not entirely abrogated by the legislation of this coun- 
 try and of England. 
 
 Lord Mansfield, over a hundred years ago, gave a very learned 
 and lucid disquisition upon the history and principles of the doc- 
 trine of descent cast, and the subject was often under review and 
 investigation in the early jurisprudence of the American states. 
 (For Lord Mansfield's exposition, vide Taylor v. Horde, 1 Burr. R. 
 60.) A note from a few of the American cases upon this subject 
 must complete the investigation in this place. 
 
 Where a person is driven from the actual possession by a public 
 enemy, who destroy the improvements on the property, it has been 
 held, that the law, according to the equity of the jus postliminii, 
 revests the possession in him on the removal of the hostile force; 
 and the constructive possession remains in him until an actual 
 adverse entry. It was further held in the" same case, that, where 
 a person dies in possession of land, it is prima facie evidence of 
 title by descent in his heirs. {Smith v. Lorillard, 10 Johns. E. 338.) 
 
 Judge Story, in delivering an opinion in a case in the supreme 
 court of the United States, said : " The law will never construe a 
 possession tortious, unless from necessity. On the other hand, it 
 will consider every possession lawful, the commencement and con- 
 
WSAT CONSTITUTES A SISSEISim 81 
 
 tinuance of -whieh is not proved to be wrongfal." {liicard v. 
 Williams, 7 "Wheat. E. 107.) Reasonable as this, doctrine seems 
 to be, it has been questioned by the courts in Pennsylvania. ( Vide 
 Deer v. Zane, 1 Penn. R. 417.) 
 
 Sometimes the matter of disseisin may be a subject of an elec- 
 tion. For example, the conveyance in fee by a tenant was a dis- 
 seisin by the landlord or not, at his election. For the sake of his 
 remedy, he had a right to consider the grantee a disseisor. But 
 he cannot constitute himself a disseisor in spite of his landlord. 
 (Jackson v. Davis, 6 Cow. E. 123, 134.) But, where there has 
 been an actual disseisin, the disseisor is not at liberty to consider 
 himself as not disseised. {Davis v. Martin, 3 Munf. R. 285.) The 
 distinction between a disseisin by election, as contradistinguished 
 from a disseisin in fact, was taken for tlie benefit of the owner of 
 the land, and to extend to him the easy and desirable remedy by 
 assize, instead of the more tedious remedy by writ of entry. When- 
 ever an act is done, which, of itself, works an actual disseisin, it is 
 still taken to be an actual disseisin, as if a tenant for years or at 
 will should enfeoff in fee. On the other hand, those acts which 
 are susceptible of being made disseisins by election are no disseisins 
 till the election of the party makes them so ; as if a tenant at will, 
 instead of making a feoffment in fee, should. only make a lease for 
 years. {Jackson v. Ilogers, 1 Johns. Cas. 36.) 
 
 Said Mr. Justice Johnson, in delivering an opinion in a case in 
 the supreme court of the United States : " Disseisin or adverse 
 possession as a fact is always a possible thing, and may occur when- 
 ever force may be applied. The common law, generally speaking, 
 regards it as an act of force, and always as a tortious act ; and yet, 
 out of regard to having a tenant to the praecipe and one promptly 
 to do service to the law, attaches to it a variety of legal rights and 
 incidents. Rights accruing under acts of limitations are recog- 
 nized, in terms, as prima facie originating in wrong, although 
 really among the best protections of right ; and, if any one who can 
 commit a disseisin may claim under an adverse possession, it is 
 not easy to preclude any one, an infant, ^feme covert, a joint ten- 
 ant or tenant in common, a guardian, and even one getting posses- 
 sion by fraud may be a disseisor. * *• So the whole injury is 
 reduced to the fact of entering, and the intention to usurp posses- 
 • • sion. These are the elements of actual disseisin ; and yet we have 
 seen, that one may become a disseisor, though entering peaceably 
 11 
 
82 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 under a void deed, or a void feoffment, or by fraud ; and that the 
 intention to disseise may, under circumstances, be imputed to those 
 who, by a general rule of law, are, in ordinary cases, incapable of 
 willing, or not bound by an exercise of the will." And it was 
 held by the court, that, when one having no title conveys to a 
 third person, who enters under the conveyance, the law holds him 
 to be a disseisor. [Jackson v. Huntington, 5 Pet. R. 401, 438.) 
 
 There is a distinction between disseisins which are in spite of 
 the owner, and disseisins at his election. The owner cannot elect 
 to consider himself disseised, when the act is not of such a natm-e 
 as in law affords a presumption of a disseisin. But when an act 
 is done which is equivocal, and may be either a trespass or dissei- 
 sin, according to the intent, then the law will not permit the 
 wrong-doer to qualify his own wrong, and explain it to be a mere 
 trespass, unless the owner elects so to consider it. [Prescott v. 
 Wivers, 4 Mason, 326.) 
 
 The late Chancellor Walworth, in delivering the unanimous opin- 
 ion of the court in a case in the late court of errors of the state 
 of New York, said: "Two kinds of disseisin are mentioned in 
 the English law books. The one was a disseisin in fact, which 
 actually changed and divested the seisin of the original owner of 
 the freehold, and deprived him of all right in relation thereto, 
 except the mere right of entry and of property, and wliich, under 
 certain circumstances, were still further reduced to amere right of 
 action, the right of entry being lost. Ey this species of disseisin 
 the wrong-doer acquired a fee simple, and the actual seisin of the 
 property, together with nearly all the rights of the real owner ; 
 and all estates depending on the original seisin were divested or 
 displaced. The other kind of disseisin was called disseisin by 
 election, however the owner might consider himself disseised for 
 the sake of the remedy by action of novel disseisin ; but if he did 
 not elect to consider himself disseised, the freehold was not divested, 
 but still continued in him. {Blunden v. Baugh, Cro. Car. 302.) 
 * * * Disseisin in fact and disseisin by election have been so 
 frequently confounded, that, in examining the dicta of judges, it 
 is sometimes difficult to understand to which species of disseisin 
 they allude, without referring particularly to the facts of the case 
 which they had under consideration at the time such dicta were 
 delivered. Eut by a careful examination of the authorities, it will 
 be found that there could be no disseisin in fact, except by the 
 
WHAT CONSTITUTES A Dissursnx. 83 
 
 •wrongful entry of a person claiming the freehold, and an actual 
 ouster or expulsion of the true owner, or by some other act which 
 ■was tantamount ; such as a common law conveyance, Avith livery 
 of seisin, by a person actually seised of an estate of freehold in the 
 premises ; or some one lawfully in possession representing the free- 
 holder, or by a common recovery, in which there was a judgment 
 for the freehold, and an actual delivery of seisin by the execution, 
 or by levying a fine, which is an acknowledgment of a feeofifment 
 of record. (2 Bl. Com. 348. Co. Litt, 330, C. note 1. Doe v. 
 Thompson, 5 Cowen's R. 371. Smith v. Burtis, 6 Johns. E. 197.)" 
 This doctrine seems to have been sanctioned by tlie court, and 
 applied to the case then before them. ( YarricTc v. Jackson, 2 
 Wend. E. 166.) 
 
 The broad ground was taken by the counsel for the prevailing 
 party in the case last cited, that a disseisin in fact is a tortious 
 expulsion of the true owner ; that it is an estate gained by wrong 
 and injury, and therein differs from dispossession, which may be by 
 right or wrong ; that a bare entry on another, without an expul- 
 sion, makes such a seisin, only that the law will adjudge him in 
 possession that has the right. This view was abundantly sustained 
 by the authorities cited by the counsel, both English and Ameri- 
 can, and seems to have been adopted by the court in the case then 
 to be disposed of 
 
 A disseisin by the act of the tenant in possession may take place 
 by destruction or determination, by alienation, surrender or other- 
 wise of the particular estate upon which a remainder depends, 
 before the contingency happens for which the estate is to vest. 
 This is the doctrine of the English courts, and it has been sanc- 
 tioned by the courts of this country. ( Yide Taylor v. Horde, 1 
 Burr. E. 112. Jackson v. Davis, 5 Cow. E. 123, 134.) But if a 
 tenant at will execute a lease and give possession of the premises 
 to his lessee, the owner of the land is not thereby disseised. (Jack- 
 son V. Sogers, 1 Johns. Cas. 33.) When a man not claiming any 
 right or title to the land shall enter on it, he acquires no seisin, but , 
 by the ouster of him who was seised, and he is himself a disseisor. 
 To constitute an ouster by him who was seised, the disseisor, must 
 have the exclusive occupation of the land, claiming to hold it 
 against him who was seised, or he must actually turn him out of 
 possession. When a disseisor claims to be seised by his entry and 
 occupation, his seisin cannot extend further than his actual exclu- 
 
Si LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Bive occupation ; for no farther can the party seised be considered 
 as ousted ; for the acts of a wrong-doer must he construed strictly, 
 when he claims a benefit from his own wrong. * * * To con- 
 stitute a disseisin of the owner of uncultivated lands, by the entry 
 and occupation of a party not claiming title to the land, the occu- 
 pation must be of that nature and notoriety, that the owner may 
 be presumed to know that there is a possession of the land adverse 
 to his title, otherwise if a man be disseised without his knowledge, 
 and the statute of limitations may run against him, while he has 
 no ground to believe that his seisin has been interrupted. {The Pro- 
 prietors of the Kennebec Purchase v. Stringer, 4 Mass. E. 418, 419.) 
 
 A notorious and exclusive possession, without right, constitutes 
 a disseisin ; and so does an entry under a void grant. {Melvin v. 
 Proprietors of the Locks and Canals on Merrimack Piver, 5 Mete. 
 K. 15.) But it is not indispensably necessary that the entry and 
 possession be contrary to the will and intent of the owner, for it 
 has been held that a disseisin may be effected without the owner's 
 knowledge. {Poignard v. Smith, 6 Pick. R. 172. Brown v. King, 
 5 Mete. E. 173.) A right acquired by disseisin must be limited 
 by the actual occupation of the disseisor, and cannot be extended 
 by construction. {Watrous v. Soxiihviorth, 5 Conn. E. 305. 
 Pimmer v. The Proprietors of Pong Wharf 5- Pick. E. 135.) 
 And a servant can acquire no title by disseisin to lands on which 
 he is employed, as against his master, except by a refusal to quit. 
 {Commonwealth v. Dudley, 10 Mass. E. 408.) 
 
 When parties agree, though by parol only, upon a divisional line 
 between their adjoining lands, and afterward hold possession in 
 conformity with such line, the possession of one is regarded as 
 adverse to the other, and amounts to a disseisin. (Boston and 
 Worcester Railroad v. Sparhawk, 6 Mete. E. 469.) And when 
 one enters upon land claiming title, though under a parol gift 
 only, and holds exclusive possession, such possession is adverse, 
 and amounts to a disseisin. {Sumner v. Stevens, 6 Mete. E. 337. 
 Vide Ashley v. Ashley, 4 Gray's E. 197.) But actual, exclusive 
 and adverse possession will not avail as proof of title by disseisin, 
 unless it is shown to have been open and notorious, or actually 
 brought home to the knowledge of the person holding the legal 
 title. {Cook V. Babcoch, 11 Cush. E. 210.) Of course, no person 
 who has a seisin and title to land will lose his seisin by ,any entry 
 by a stranger, so long as he retains the possession, {Slater v. 
 
WBAT CONSTITUTES A mSSEISm. 85 
 
 Rawson, 6 Mete. R. 439. Anonymous, 1 Salk. R. 246.) Accord- 
 ingly, it has been lield, that if a man entered and made a feoff- 
 ment, while the owner was upon the land, the feofl'ment was 
 absolutely void. {Luvey v. Figott, Poph. E. 170, 171.) Neither 
 can a seisin be gained by occupying lands by the permission of the 
 owner, except by some open and unequivocal acts of disseisin done 
 by him and known to such owner. {Hall v. Stevens, 9 Mete. E. 
 418. Clarlc v. McClure, 10 Gratt. E. 305.) And to constitute 
 disseisin, the possession of the disseisor must have been adverse to 
 the title of the true owner, as well as open, notorious and exclu- 
 sive. {Little V. Sibley, 2 Greenl. E. 242.) 
 
 Actual disseisin is a wrongful entry by one man upon the land 
 of another, with intent to usurp the possession ; and, when retain- 
 ing the possession, he actually turns the owner out, or at least 
 keeps him out. {Towle v. Ayer, 8 N". H. E. 57.) And it has 
 been held, that whoever, being on the land of another, calls in 
 question the rights of the owner, and usurps a dominion over the 
 estate, either by words or by acts, is a disseisor. ( Walker v. Wil- 
 son, 8 K H. E. 217.) 
 
 If one remains in possession of land, claiming it after an entry 
 by the owner, he may be treated as a disseisor ; and it has been 
 held, that if the owner of land enter upon one in possession who 
 has no right and makes no claim, demanding the possession, if the 
 party does not quit the premises, the owner may treat him as a 
 disseisor at his election, although the party thus found upon the 
 land replies that he has no possession to give up. Having no 
 right, he has no just reason for remaining, against the will of the 
 owner, and qualifying the wrong of remaining by alleging that he 
 claimed nothing. ( Wallcor v. Wilson, 8 N. H. E. 62. Whiddffn 
 V. Proctor, 17 ib. 90, 99.) Although mere words, or taking a deed 
 of land without entry under it, or the prosecution of a real action 
 against a stranger, to recover knd, do not constitute a disseisin, 
 while, however, declarations do not in themselves constitute a 
 disseisin, they may give a character to the acts or possession of a 
 party, which will make the latter a disseisin. {Towle v. Ayer, 
 sujpra.) 
 
 A person who has been evicted from the possession of lands 
 can, without showing title in himself, maintain ejectment for 
 them against the grantee of his disseisor, who is also without title. 
 This doctrine seems to be settled, both in this country and in Eng- 
 
86 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 land ; perhaps better in this than our mother country, by reason 
 of the greater frequency of questions of tliis nature in a country 
 whose settlement is comparatively new and sparse. There are, 
 however, some early cases to be found upon the point in the Eng- 
 lish books ; and here it is clearly settled, that a person who has 
 been disseised by a tortious entry, without any claim or color of 
 right or title from any person, can maintain ejectment against the 
 purchaser, the lona fide purchaser even, as his disseisor. {Vide 
 JBateman v. Allen, Cro. Eliz. 437. Allen v. Eivington, 2 Saund. 
 E. 111. Jackson v. Hazur, 3 Johns. E. 22. Jackson v. Harder, 
 i ib. 202, 210. Clute v. V9ris, 31 Barb. E. 511.) 
 
 A mortgagor, after forfeiture, may treat any person found in 
 possession of the mortgaged premises, whose title is not good as 
 against him, as a wrong-doer and disseisor at his election. ( Wheeler 
 V. JSates, 1 Foster's E. 460.) 
 
 To make a disseisin, according to the true meaning of the term, 
 there must be a claim or color of title at the commencement ; for 
 any other entry is a mere tresj)ass. To constitute a disseisin, 
 therefore, there must be an intention to obtain an adverse posses- 
 sion, and, i;nless that be manifest, the wrongful act cannot put 
 him out who is seised of the freehold. This is substantially the 
 rule as laid down by Judge Bouvier in his " Institutes of American 
 Law," which he has extracted from Mansfield, Littleton and Coke. 
 (4 Bouvier's Inst. 558.) Littleton, in § 279, defines disseisin with 
 an etc. : " When a man enters into lands or tenements, wlien his 
 entry is not congeable, and ousteth him which hatli the freehold, 
 etc." The comment says : " Every entry is no disseisin, unless 
 there be an ouster of the freehold" and Coke says : " Disseisin is 
 putting a man out of seisin, and ever implies a wrong; but dis- 
 possession or ejectment is putting out of possession, and may be by 
 right or wrong." (Co. Litt. 153, 5.) 
 
 There can be no disseisin of an equitable estate. {Marquis 
 Cholmondeley t. Lord Clinton, 2 Meriv. E. 361.) And a disseisin 
 may be judged either by the disseisor's abandonment of the pos- 
 session, or his consent to hold under the disseisee. {Small v. 
 Procter, 15 Mass. E. 499.) 
 
 Successive disseisins do not aid another in creating a title 
 by possession. Thus where a disseisor conveyed a part of the 
 land, and the grantee, under color of the deed, entered upon the 
 whole, it was held that the possession of the first disseisor would 
 
STATUTE OF LIMITATIONS. 87 
 
 not avail the grantee in respect to the part not embraced in the 
 deed. ( Ward v. Bartholomew, 6 Pick. E. 409.) 
 
 Thus raucli upon the subject of disseisin and descent cast. 
 The discussion might be continued much further, but the investi- 
 gation would, perhaps, be considered unprofitable. In respect to 
 the doctrine of descent cast, it has been well said that it is 
 scarcely possible to suggest a case in which it can be now so ap- 
 plied, as to prevent a claimant from maintaining ejectment, be- 
 cause from the principles of disseisin at election, he may always 
 lay his demise in the time of the ancestor, and elect not to be 
 disseised. Besides, the doctrine has become of less importance 
 from the fact that it has been provided \)j statute in many of the 
 States, that the right of a person to the possession of any real 
 property shall not be impaired or affected by a descent being cast 
 in consequence of the death of a person in possession of such 
 property. ( Vide 2 N". Y. Stat, at Large, 306, § 8Y.) In other 
 words, the doctrine of " descent cast " has been abrogated by the 
 statutes of many of the states, and by the statute now in force in 
 England. But at common law, the doctrine does not apply, if the 
 claimant be nnder any legal disabilities during the life of the 
 ancestor, either of infancy, coverture, imprisonment, or being out 
 of the realm ; because in all these cases there is no neglect or 
 laches in the claimant, and therefore no descent shall bar or take 
 away his entry. (Litt. 1, 3, c. 6.) More of this, however, when 
 the statute of limitations is considered, which will be the subject 
 of the next chapter. 
 
 CHAPTER V. 
 
 THE STATUTE OF LBOTATIONS AS A BAE TO THE ACTION OF EJECT- 
 MENT — THE LAWS OF GBBAT BEITAIN AND THE PBOVINCE OF ONTAEIO, 
 NEW TOEK, AND NEW JEESET. 
 
 It has been held that the claimant in an action of ejectment 
 must have not only a legal title to the lands in dispute, but he 
 must also have a right of entry, or a right to the possession of the 
 premises in controversy ; and that whatever will take away this 
 right of entry, or right of possession, will defeat the action. The 
 subject of descent and disseisin, as an extinguishment of this right, 
 
88 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 has already been considered, and it remains now to examine the 
 manner by whicli it may be destroyed by the statute of limita- 
 tions. 
 
 Title to lands, by adverse enjoyment, owes its origin to, and is 
 predicated upon, the statute of limitations, and although the 
 statute does not profess to take an estate from one man and give 
 it to another, it extinguishes the claim of the former owner, and 
 quiets the possession of the actual occupant, who proves that he 
 has occupied the premises under a color of title, peaceably and 
 quietly for the period prescribed by law. The statute of limita- 
 tions, therefore, may properly be referred to as a source of title; 
 and is really and truly as valid and effectual as a grant from the 
 sovereign power of the state. 
 
 The term " limitation," as used in the statutes of this country, 
 is nearly synonymous with the word " prescription," used in the 
 Koman law, and means the time prescribed by statute within 
 which a title to property may be acquired by adverse possession ; 
 or, at the end of which an action is barred for its recovery. 
 Prescription, as at present understood, has no application to the 
 action of ejectment, for the reason that an exclusive right of pos- 
 session of real property cannot be established by prescription. 
 The term applies only to incorporeal hereditaments, and for incor- 
 poreal hereditaments ejectment will not lie. ( Yide Ferris v. 
 Brown, 3 Barb. E. 105. Cortelyoxi v. Van Brundt, 2 Johns. E. 
 363.) Eut limitation, as prescribed by statute, extends to corporeal 
 hereditaments, and thereby an iminterrupted possession for a 
 certain number of years will give the possessor a good title by 
 taking from all others the right of maintaining any action for 
 the recovery thereof. Strictly speaking, no positive right is 
 acquired by virtue of the statute of limitations, but only the 
 remedy of the former possessor is taken away for the recovery of 
 the property adversely enjoyed. 
 
 The statute of limitations for the recovery of real property dif- 
 fers in the different states, and as the subject of adverse posses- 
 sion will be specifically treated in another part of this work, a 
 brief reference will only be made here to the statutes of the several 
 states, and the cases in which those statutes are applicable to the 
 action of ejectment. 
 
 Before referring to the statute of limitations in force in this coun- 
 try however, it may be advisable to consider, in a very concise man- 
 
THE STATUTE OF LIMITATIONS OF ENGLAND. 89 
 
 ner, the act now in force in England for the limitation of actions on 
 Buits relating to real property, and for simplifying the remedies for 
 trying the rights thereto. It is the statute of 3 and 4 William lY, 
 ch. 27, and it appears to be the model after which the statutes of 
 limitations in most of the American states have been framed. 
 
 By the English statute, all titles to lands are reduced to posses- 
 sory titles, so that the right of recovery and the remedy by eject- 
 ment are made co-extensive, vi'liile the mere acquiescence of a claim- 
 ant, or succession of claimants in the same right (being under no 
 legal disabilities), in the possession of the land by a stranger, with- 
 out enforcing his or their rights by legal proceedings for a period 
 of twenty j'ears, is an effectual bar to all claims against the party 
 so possessed, and such possession, undisturbed for forty years, gives 
 to him an absolute indefeasible title to the property, notwithstand- 
 ing there may have been a continued existence of legal disabilities 
 in the rightful owners. 
 
 The first section of the act simply gives the meaning of certain 
 words and expressions used in the act. The second section pro- 
 I vides, that no person shall make an entry or bring an action to 
 recover any land, " but within twenty years next after the time at 
 ■which the right to make such entry or to bring such action shall 
 have first accrued to some person through whom he claims; or, if 
 such right shall not have accrued through any person through whom 
 he claims, then within twenty years next. after the time at which 
 the right to make such entry or to bring such action shall have first 
 accrued to the person making or bringing the same." 
 
 It is declared by section 3 of the act, that the right to make such 
 entry or bring such action is deemed to have first accrued accord- 
 ing to the following rules, viz. : when the claimant has, in respect 
 of the estate claimed, been in possession, and while entitled thereto 
 been dispossessed, or discontinued such possession, then such right 
 shall be deemed to have first accrued at the time of such dispos- 
 session, or discontinuance of possession, or at the last time at which 
 any profits were received ; and where the claimant shall claim the 
 estate of some deceased person, who shall have continued in such 
 possession until the time of his death, and shall have been the last 
 person entitled to such estate who shall have been in such posses- 
 sion, then such right shall be deemed to have first accrued at the 
 time of such death ; and when the claimant shall claim in respect 
 of an estate in possession, in any manner assured by any instru- 
 12 
 
90 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ment, other than a wil], to him, or some person through whom he 
 claims, by a person being in respect of the same estate in posses- 
 sion, and no person entitled under such instrument shall have been 
 in such possession, then such right shall be deemed to have first 
 accrued at the time at which the claimant became entitled to such 
 possession by virtue of such instrument ; and where the estate 
 claimed shall have been a future estate, and no person shall have 
 obtained the possession in respect thereof, then such right shall be 
 deemed tp have first accrued at the time at which the same became 
 an estate in possession ; and where the claimant has become enti- 
 tled by reason of any forfeiture or breach of condition, then such 
 right shall be deemed to have first accrued when such forfeiture 
 was increased, or such condition broken. 
 
 By sections 10 and 11 of the act, it is declared that no person 
 shall be deemed to have been in possession within the meaning of 
 such act, merely by reason of having made an entry thereon, or 
 continued claim thereof; and by section 35, the receipt of the rent 
 payable by any tenant from year to year, or other lessee, shall, as 
 against such lessee, or any person claiming under him, but subject 
 to the lease, be deemed to be the receipt of profit ; and by section 
 14, where any acknowledgment of title shall be given to a party 
 or his agent, in writing, signed by the person in possession, then 
 the possession of such person shall be deemed to be the possession 
 of the party to whom or to whose agent such acknowledgment was 
 given ; and the right of such party, or those claiming through him, 
 to recover such land, shall be deemed to have first accrued at and 
 not before the time at which such acknowledgment was given. It 
 will be observed that an attornment in writing is a good admission 
 of title bj' the provisions of the above section 14, and it has been 
 held, that, if it be merely an attornment, and do not amount to a 
 new demise, it will not require a stamp. {Doe v. Edwards, 5 
 Adolph. & Ell. E.. 95.) It has also been held, that, when, on an 
 application for alleged arrears of rent, the tenant, by letter, com- 
 plained of having been put to much expense with respect to the 
 land, and said it was reasonable that the lords of the fee should 
 make him recompense accordingly, and that F., the party apply- 
 ing, should vindicate his right to the land rather than that tlio 
 expenses should fall upon the tenants, and concluded his letter by 
 begging " compassion, mercy, and pity, and recompense in a satisfac- 
 tory manner ; " this was an admission of title within the meaning 
 
THE STATUTE OF LIMITATIONS OF ENGLAND. 91 
 
 of said section 14. [Furdson v. Clegg, 10 Mees. & Wekb. E. 572.) 
 But, where a party in adverse possession of land, being applied to 
 by a person claiming, title to it to pay rent, ofl'ering a lease of it, 
 •wrote thus:' "Although if matters were contested, I am of opinion 
 that I should establish a legal right to the premises ; yet, under all 
 cii'cumstances, I have made up my mind to accede to the propo- 
 sal you make of paying a moderate i*ent, on an agreement for a term 
 of twenty years ; " but the bargain was not consummated, and no 
 rent was paid or lease executed ; this letter was held by the court 
 not to amount to an admission of title within the meaning of this 
 section. {Doe v. Edmonds, 6 Mees. & "Welsh. E. 295.) 
 
 "Where A was in possession of lands for more tlian twenty years, 
 and died in possession, and his widow had possession from that 
 time until her death, twenty years after, and B was the eldest son 
 of both A and his wife, it was contended that B could not recover, 
 because, as heir of his father, he had been kept out of possession 
 by his mother above twenty years, and was, therefore, barred by 
 the statute 3 and 4 William IV, ch. 27, and he .could not claim, 
 as heir of his mother, because, the mother's possession not being 
 an adverse one, she could not acquire a descendible estate. Cole- 
 ridge, J., directed the jury to infer, that the property belonged to 
 the mother, and survived to him on her husband's death, and then 
 descended to B, as his heir, and the plaintiff had a verdict. {Doe 
 V. Long, 9 Carr. & Payne's E. 773.) 
 
 Section 3 of the statute of 3 and 4 William lY, ch. 27, provides, 
 that, where the estate claimed is a future estate, and no person has 
 obtained possession in respect thereof, then the right is deemed to 
 have jfirst accrued at the time at which such estate became an estate 
 in possession. When, therefore, a lessor allowed his tenant to 
 remain in possession for more than twenty years without paying 
 rent, it is held, that he is not thereby deprived of his right, but 
 may bring his action at any time within twenty years after his 
 reversion becomes an " estate or interest in possession," viz., after 
 the term of the tenant has expired. {Doe v. OxenJiam, 7 Mees. & 
 Welsh. E. 131.) But, where the tenant for life has gone abroad, 
 and not been afterward hfeard from, it is decided, that the 
 statute begins to run against the remainderman from the time the 
 tenant for life goes abroad, unless he is able to prove his exact 
 death, and not from the expiration of seven years. {Nepeom v. 
 Doe, 2 Mees. & Welsh. E. 89'4.) 
 
92 .LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 By section 5 of the act, it is enacted, that the right to make entry 
 or bring an ejectment shall be deemed to have accrued in respect 
 of any estate or interest in reversion at the time at which the same 
 shall have become an estate or interest in possession, by the deter- 
 mination of any estate, in respect of which the land shall have 
 been held, or the profits i-eceived, notwithstanding the claimant 
 should, previously to the creation of the determined estate, have 
 been in possession or receipt of the profits. 
 
 But, by section 20, where the right of any person entitled to an 
 estate in possession shall have been barred by the determination 
 of tlie period applicable by the statute to such case, and such per- 
 son shall, at any time during such period, have been entitled to 
 any other estate wliatsoever in I'eversion, or otherwise, to the same 
 land, no entry or action shall be made or brought by such person, 
 or any person claiming through him, in respect of 'such other estate, 
 unless, in the meantime, such land shall have been recovered by 
 some person entitled to an estate, limited or having taken efiect 
 after or in defeasance of such estate in possession. 
 
 Where the rights of a remainderman arise after an estate tail, 
 if the tenant in tail die seised, the remainderman must enter or 
 bring his action within twenty years after the death of the tenant 
 in tail. But, by section 21, where the rights of a tenant in tail 
 have been barred by reason of the same not having been enforced 
 within the period applicable in such case, the bar, after his decease, 
 will extend to every person claiming any estate which such tenant 
 in tail might lawfully have barred, and by section 22, when a ten- 
 ant-in tail shall die before the expiration of the period applicable 
 in such case, for making an entry or bringing an action, no person 
 claiming any estate which such tenant in tail might lawfully have 
 barred, shall make an entry or bring an action, but within the 
 period during which, if such tenant in tail had so long continued 
 to live, he might have made such entry or brought such action. 
 
 Where estates are settled to the use of a wife for life, with 
 remainder to her issue in tail, and remainders after, and in 1818, 
 by proper assurances, to which her husband and only child were 
 parties, the estates were limited to the husband for life, reinainder 
 to the wife for life, remainder to the child for life, remainder to 
 his issue in tail, remainder to J. F. for life, with other remainders 
 over; and the husband died in 1819, the wife in 1822, and the son 
 in 1828, it was held, that, inasmuch as the estate of J. F. was car- 
 
TffE STATUTE OF LIMITATIONS OF ENGLAND. 93 
 
 ried out by the estate tail of the son, the said J. F. had the 
 same period for bringing the ejectment as the son avouM have had 
 if he had continued to live, viz : twenty years from 1822, when 
 his remainder came into possession. {Doe v. Edmonds, 6 Mees. & 
 Welsh. E. 275.) 
 
 Section thirty-nine. of the act expressly declares that no descent, 
 cast, discontinuance, or warranty, shall toll or defeat any right of 
 entry, or action for the recovery of land. 
 
 With respect to the rights of a reversioner against a tenant at 
 will, or from year to year, it is enacted by section seven of the act, 
 that when any person shall be in possession as tenant at will, the 
 right of the person entitled subject thereto, or of the person 
 thiough whom he claims to make an entry or bring an action, 
 shall be deemed to have first occurred, either at the determination 
 of such tenancy, or at the expiration of one, year next after the 
 commencement of such tenancy, at which time such tenancy shall 
 be deemed to have determined. It is further provided by statute, 
 that no mortgagee or cestui que trust shall be deemed to be a tenant 
 at will within the meaning of this clause. 
 
 It has been decided that the trusts comprised- within this' 
 proviso are only express and declared trusts, and that a purchaser 
 let into possession under an agreement to purchase is not a cestui 
 que trust, within its meaning, but a tenant at will, and in case the 
 agreement should not be completed, the vendor must bring his 
 action within twenty years, or he will be barred. [Doe v. Gar- 
 penter, 9 Carr. & Payne's E. 112.) But where, in 1816, a person 
 was then let into possession under an agreement to purchase, which 
 was never completed, and continued in possession iintil his death, 
 in 1822, without paying rent ; and then his widow, to whom he 
 had devised all his real estate, entered and was possessed ; and rent 
 being demanded of her in 1827, she promised to pay it, but never 
 did ; in ejectment brought in 184:2, by the heir of the vendor, the 
 court held, that it was rightly left to the jury to say, whether a 
 tenancy at will had not been created between the vendor and the 
 widow, the action being otherwise barred by this section. {Doe v. 
 BocTc, 1 Car. & Marshman's E. 549.) 
 
 It has been held, that the rights conferred on tenants at will by 
 this statute do not extend to such tenants at will as shall have 
 quitted possession before the statute was passed, so as to enable 
 them to recover the land, on the ground that they had acquired a 
 
94: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 fee- by the non-payment of rent for twenty years before they 
 quitted possession. {Doe v. Thompson, 6 Adolph. & Ell. E. 721.) 
 
 AVhere a tenancy at will has been created between the lessor 
 and the defendant, or those under whom he claims, and such 
 tenancy has been determined, and a new tenancy at will created, 
 the statute will run from the time of the creation of such second 
 tenancy, and the determination of the original tenancy at will is a 
 question for the jury. 
 
 An entry on the land by the landlord, without the tenant's con- 
 sent, and cutting and carrying away stones therefrom, has been 
 held, on error, to warrant a jury in finding the then existing 
 tenansy at will, thereby determined ; and a subsequent assess- 
 ment for the land tax, in the parish, by the defendant, being an 
 assessor, in which he names himself as occupier, and his landlord 
 as proprietor of the land, is evidence from which a jury may 
 infer that a tenancy at will has been created between the parties. 
 {Doe V. Turner, 1 Mees. & Welsh. E. 226. lb. 643.) 
 
 By section eight of the act, when any person shall be in posses- 
 sion as tenant, from year to year, or other period, without any 
 lease in writing, the right of entry of the person entitled, subject 
 thereto, shall be deemed to have first accrued at the determina- 
 tion of the first of such years or other periods, or at the last time 
 when any rent payable in respect of such tenancy shall have 
 been received, which shall happen. 
 
 "Where a right of entry occurs to a reversioner, by reason of 
 a forfeiture or breach of condition, advantage must be taken of 
 such forfeiture within twehty years next after the forfeiture was 
 incurred, or the condition broken ; but by section four, it is provi- 
 ded, that if no advantage be taken by the reversioner of such 
 foi'feiture or breach of condition, then, notwithstanding such for- 
 feiture or breach of condition, his right shall be deemed to have 
 first accrued in respect of such estate, at the time when the same 
 shall become an estate in possession, as if no such forfeiture or 
 breach of condition had happened. 
 
 By section 9 of the statute, it is enacted that when any person 
 shall be in possession by virtue of a lease in writing, by which rent 
 amounting to the yearly sum of twenty shillings and upward is 
 reserved, and the rent so reserved shall have been received by some 
 wrongful claimant to such land in reversion immediately expectant 
 on the determination of such lease, and no payment in respect of 
 
TBE STATUTE OF LIMITATIONS OF ENGLAND. 95 
 
 the rent reserved sliall afterward have been made to the person 
 rightfully entitled thereto, the right of such rightful person subject 
 to such lease, to make entry, or to bring an action after the deter- 
 mination of such lease, shall be deemed to have first accrued at the 
 time at which the rent reserved by such lease was first so received 
 by such wrongful claimant, and no such right shall be deemed to 
 have first accrued upon the determination of such lease to the per- 
 son rightfully entitled. 
 
 Such are the provisions of the statute of 3 and 4 William IV, 
 chapter 27, in respect to the time within which a remainderman or 
 reversioner must claim his estate. 
 
 If tenants in tail die seised, the issue must bring their action 
 within twenty years after the death ; but if he do not'die seised, 
 then, if he were then barred, his issue would be barred also. But 
 if he were not then barred, the twenty years not having then ex- 
 pired, his issue has, by section 22 of the statute of 3 and 4 William 
 lY, chapter 27, the same time within which to bring his action 
 that the tenant in tail would have had if he had lived. 
 
 And by section 23 of the act, when a tenant in tail shall have 
 made an assurance, not operating to bar estates to take eifeet after, 
 or in defeasance of his estate tail, and any person shall by virtue 
 of such assurance be in possession, and the same person, or any 
 other person whatsoever, other than some person entitled to such 
 possession, in respect of an estate which shall have taken effect 
 after, or in defeasance of the estate tail, shall continue in such pos- 
 session for twenty years next after the commencement of the time 
 at which such assurance, if it had been executed by such tenant in 
 tail, or the person who would have been entitled to his estate tail, 
 if such assurance had not been executed, would, without the con- 
 sent of any other person, have operated to bar such estates as 
 aforesaid ; then, at the expiration of such period of twenty years, 
 such assurance becomes an efi'ectual bar against any person claim- 
 ing any estates whatsoever, to take effect after or in defeasance of 
 such estate tail. 
 
 Such are the provisions of the act with respect to the issue of 
 tenants in tail. 
 
 The act of 3 and 4 William lY, chapter 27, section 2, provides 
 in respect to personal representatives, that the executor or adminis- 
 trator of a person who was in possession at the time of his death 
 must bring his action within twenty years after the death of the , 
 
96 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 testator or intestate ; but if the testator or intestate "was not in 
 possession at the time of his deatli, tlien the representative must 
 bring his action within the same time in which the deceased must 
 have sued, if he were still living. And for the purposes of the 
 act, by section G, in cases of administration, the interval of time 
 between the death and the grant of letters of administration is 
 reckoned. 
 
 In respect to ecclesiastical persons, it is provided by section 29 
 of the act, that any spiritual, or eleemosynary corporation sole, 
 may make an entry, or bring his action within the following peri- 
 ods, next after the time at which the right shall first have accrued, 
 viz. : The period in which two persons in succession shall have held 
 the office or benefice in respect whereof such land shall be claimed, 
 and six years after a third person shall have been appointed there- 
 to, if the time of such two incumbencies and such term of six 
 years, taken together, shall amount to the full period of sixty years, 
 then during such further number of years in addition to such six 
 years, as well with the time of holding of such two persons, and 
 such six years make up the full period of 'sixty years. 
 
 And in rpspect to persons under legal disabilities, it is provided 
 by section 16 of the act, that persons laboring under any of the 
 following disabilities at the time of their rights first accruing, viz., 
 infancy, coverture, idiocy, lunacy, unsoundness of mind, or absence 
 beyond seas, then such person or the person claiming through him 
 may, notwithstanding the period of twenty years shall have ex- 
 pired, make an entry, or distress, or bring an action at any time 
 within ten j'ears next after the time at which the person to whom 
 such right shall have first accrued as aforesaid, shall have ceased to 
 be under any such disability, or shall have died, which shall have 
 first happened ; but it is provided by section 17 of the act, never- 
 theless, that after the expiration of forty years next after the time 
 at which any such right to make an entry, or bring an action, shall 
 have first accrued, such right shall be eflectually barred, although 
 the person under disability at such time may have remained under 
 disability during the whole of such forty years, or although the 
 term of ten years, from the time at which he shall have ceased to 
 be under any such disability or have died, shall not have expired. 
 And by section 18, when any person under disability at the time 
 at which his right first accrued shall have died without havino- 
 ceased to be under such disability, no time to make an entry or to 
 
1BE STATUTE OF LIMITATIONS OF ONTARIO. 97 
 
 bring an action — beyond the twenty years next after tlie right of 
 such person first accrued, or the ten years next after the time at 
 which such person died — shall be allowed by reason of any disa- 
 bility of any other person. 
 
 The provisions of the statute here given have been extended to 
 Ireland, and the statute has also been explained by a subsequent 
 act, but the law remains substantially as at first enacted. (6 and 7 
 Vict., eh. 54.)- 
 
 The statute of limitations in the province of Ontario is in many 
 respects like that of the act of 4 William IV, chapter 27, and pro- 
 vides that no person shall make entry or distress, or bring an 
 action to recover any land or rent, but within twenty years next 
 after the time at which the right to make such entry or distress, or 
 to bring such action, shall have, first accrued to some person 
 through whom he claims, or if such right shall not have accrued 
 to any person through whom he claims, then within twenty years 
 next after the time at which the right to make such entry or dis- 
 tress, or to bring such action, shall have first accrued to the 
 person making or bringing the same. 
 
 In the construction of the act of limitation, the right to make an 
 entrjr or distress, or bring an action to recover, any land or rent, 
 is deemed to have accrued, — 1, when the person claiming such land 
 or rent, or some person through whom he claims, shall, in respect 
 of the estate or interest claimed, have been in possession or in 
 receipt of the profits of such land, or in receipt of such rent, and 
 shall, while enj;itled thereto, have been dispossessed, or have dis- 
 continued such possession or receipt, then such right shall be 
 deemed to have first accrued at the time of such dispossession or 
 discontinuance of possession, or at the last time at which any such 
 profits or rent were or was received ; 2, when the person claiming 
 such land or rent claims the estate or interest of some deceased 
 person who shall have continued in such possession or receipt, in 
 respect of the same estate or interest, until the time of his death, 
 and shall have been the last person entitled to such estate or 
 interest, who shall have been in such possession or receipt, then 
 such riglit shall be deemed to have first accrued at the time of 
 such death; 3, when the person claiming such land or rent claims 
 in respect of an estate or interest in possession, granted, appointed, 
 or otherwise assured by any instrument other than a will, to him 
 or some person through whom he claims, by a person being in 
 13 
 
98 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 respect of the same estate or interest, in the possession or receipt 
 of the profits of the land, or in receipt of the rent, and no person 
 entitled under such instrument shall have been in possession or 
 receipt, then such right shall be deemed to have first accrued at 
 the time at which the person claiming, as aforesaid, or the person 
 through whom he claims, became entitled to such possession or 
 receipt by virtue of such instrument ; 4, when the estate or inter- 
 est claimed shall have been an estate or interest in reversion or 
 remainder, or other future estate or interest, and no person shall 
 have obtained the possession or receipt of the profits of such land, 
 or the receipt of such rent, in respect of such estate or interest, 
 then such right shall be deemed to have first accrued at the time 
 at which such estate or interest became an estate or interest in 
 possession ; 5, when the person claiming such land or rent, or the 
 person through whom he claims, shall have become entitled, by 
 reason of any forfeiture or breach of condition, then such right 
 shall be deemed to have first accrued when such forfeiture was 
 incurred or such condition broken. 
 
 In the case of lands granted by the crown, of which the grantee, 
 his heirs or assigns, have not taken actual possession by residing 
 upon or cultivating some portion thereof, and in case some other 
 person not claiming to hold under such grantee hg,s been in pos- 
 session of such land, such possession having been taken while the 
 land was in a state of nature, then, unless it can be shown that 
 such grantee or such person claiming under him, while entitled to 
 the lands, had knowledge of the same being in the.actual posses- 
 sion of such other person, the lapse of twenty years will not bar 
 the right of such grantee or any person claiming under him to 
 bring an aetioa for the recovery of such land, but the right to bring 
 such action will be deemed to have accrued from the time that such 
 knowledge was obtained ; and where advantage of forfeiture is not 
 taken by the reversioner or remainderman, the right is deemed to 
 have accrued when his estate comes into possession. 
 
 An administrator claiming the estate or interest of a deceased 
 person is deemed to claim as if he obtained the estate without 
 interval after the death of the deceased. And in the ease of a ten- 
 ant at will the right is deemed to have accrued at the determination 
 of the tenancy, or at the end of one year after the commencement 
 of such tenancy, at which time the tenancy is deemed to have 
 
THE STATUTE OF LIMITATIONS OF ONTARIO. 99 
 
 determined. But no mortgagor or cestui que trust is to be deemed 
 a tenant at will within, this provision. 
 
 No person, after a tenancy from year to year, is to have any 
 right but from the end of the first year or last payment of rent 
 which shall last happen. And when rent, amounting to four 
 dollars or upward, shall be reserved by a lease in writing, has 
 been wrongfully received, the right is deemed to have first accrued 
 at the time such rent was wrongfully received. 
 
 No person is deemed to have been in possession of any land by 
 reason of a mere entry thereon ; and no right to any land is 
 deemed to be presumed by a continual claim thereon. 
 
 The possession of one coparcener, joint tenant or tenant in 
 common is not to be deemed the possession of the others ; and the 
 possession of a younger brother or other relation of the person 
 entitled, as heir to the possession of any land, is not to be deemed 
 the possession of such heir. 
 
 An acknowledgment in writing given to the person entitled to 
 any land, or to his agent, by the j^erson in possession, is to be 
 taken as equivalent to possession or receipt of rent by the person 
 so entitled to such land. 
 
 At the determination of the period limited by the act to any 
 person for making an entry or distress, or bringing any action or 
 suit, the right and title of such person to the land or rent, for the 
 recovery whereof such entry, distress, action or suit respectively 
 might have been made or brought within such period, will be 
 extinguished. 
 
 Persons under the disability of infancy, lunacy, coverture, or 
 absence from the province, and their representatives, are to be 
 allowed ten j^ears from the termination of their disability or 
 death, which shall have first happened, to make an entry, or bring 
 an action to recover such land. But no entry or action can be 
 made or brought by any person after the expiration of forty years 
 from the time the right to make such entry or bring such action 
 first accrued. And no further time is allowed for a succession of 
 disabilities. 
 
 When the right to an estate in possession is barred by the act, 
 the right of the same persons to future estates is also to be barred. 
 (Consolidated Stat, of Upper Canada, 1859, chap. 88, §§ 1-16, 45-48.) 
 
 In ejectment, the plaintiff proved a proper title to the land in 
 queation, which the defendant, the heir at law of the patentee, 
 
100 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 claimed by possession. It appeared that one B took possession of 
 an acre of the same lot under a contract of purchase from a per- 
 son through whom the plaintiff claimed, and occupied it for ten 
 years, when he left, and the acre was vacant for two years, when 
 it was taken possession of by a tenant of B and occupied for three 
 years, together with the land in dispute, and after being vacant 
 for three months two other tenants of B came in succession and 
 occupied the acre of land as the others had done, when the defend- 
 ant brought ejectment for the acre, and having recovered a verdict 
 took possession of the land in question as well ; the court of 
 queen's bench of Upper Canada held, that the possession of B 
 and those succeeding him must be treated as continuous, notwith- 
 standing the breaks in the occupation, and that a verdict was 
 properly found for the defendant. B having entered with the 
 consent of the owner was tenant at will, so that the statute began 
 to run at the expiration of a year ; and the evidence showed pos- 
 session for twenty-one years. {McLaren v. Murphy, 19 Upper 
 Canada E. 609.) 
 
 The courts hold, that the fact that both plaintiff and defendant 
 were under a common error as to the true boundary of their lands 
 will not prevent the statute of limitations from running against 
 the true line, though it would be otherwise if it had been agreed 
 upon between them that a certain line should govern whether cor- 
 rect or not. {Martin v. Weld, 19 U. C. E. 631.) 
 
 As a matter of practice, the court of queen's bench decided 
 that, where a defendant in ejectment, by his notice, besides deny- 
 ing the plaintiff's title, claimed to hold under a lease, he was 
 entitled to show adverse possession by himself for twenty years in 
 order to defeat the plaintiff's claim, although the effect might be 
 to establish a title in himself of which he had given no notice. 
 {Eill v. MoKinnon, 16 U. C. E. 216.) 
 
 The right to land is held not to be barred by forty years' want 
 of possession, unless some other person has also been in possession 
 for that time. {Ketchum v. Mighton, 14 U. C. E. 99.) And when 
 the widow of the owner of land continued to occupy the land from 
 the time of the death of her husband, claiming a life estate therein 
 under a void will, for more than twenty years, the court held, that 
 her possession was not such as to bar the title of the eldest son 
 the heir at law. {McArthur v. McArihur, 14 Upper Canada 
 E. 544.) 
 

 ^' m 
 
 THE STATUTE OE LIMITATIONS OF NEW YOlif:. AklQl 
 
 Such are substantially the general provisions of 
 statute, and the statute of the province of Ontario, in 
 the limitations of actions and suits relating to real property, and 
 their remedies for trying the rights of parties to lands in that king- 
 dom and province. The act of 4 William IV, ch. 27, now in force 
 in Great Britain, is a long one, containing forty-five sections, but 
 the comprehensive statement herein given embraces all that is 
 material to the discussion in this place. As before suggested, this 
 statute has served as a model for the statute of limitations of 
 most of the states, and hence the obvious advantage of a statement 
 of its substantial provisions in this chapter. 
 
 The statute of limitations in reference to real property in the 
 state of E'ew York has been several times revised. By the act 
 of Sth April, 1801, it was provided that the people of the state 
 would not sue or implead any person, body politic or corporate, 
 for or in respect to any lands, tenements or heriditaments, other 
 than liberties and franchises, or the issues or profits thereof, which 
 had not accrued within the space of forty years before any suit or 
 other proceeding for the same was commenced, unless the said 
 people, or those under whom they claimed, had received the rents 
 and profits thereof, or of some part thereof, within the said space 
 of forty years. (1 R. L. 184.) When the statutes were revised 
 in 1830, this limitation was reduced to twenty years. (2 E. S. 
 292.) But by the Code of 1848, which is now in force, the lim- 
 itation was restored to forty years, where it still remains. (Code 
 of Procedure, § 75.) 
 
 By the act of 1801, the limitation for a writ of right for the 
 recovery of lands was twenty-five years. (1 E. L. 185.) This 
 was reduced to twenty years by the Revised Statutes of 1830 (2 
 R. S. 292), and the same limitation has been continued in the 
 Code. The writ of right was abolished by the Revised Statutes, 
 and is not known in the Code, but the limitation of twenty years 
 was applied to the substituted remedy. 
 
 The existing law of the state is contained in the Code, which 
 provides that no action for the recovery of real property, or for the 
 recovery of the possession thereof shall be maintained, unless it 
 appear that the plaintiff, his ancestor, predecessor, or grantor, was 
 seised or possessed of the premises in question within twenty years 
 before the commencement of such action. (Code, § 78.) This 
 provision is supposed to cover all of the various actions, which 
 
 
102 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 were embraced in the action of ejectment provided by the Eevised 
 Statutes. Indeed, it is expressly declared, that the general provis- 
 ions of the Eevised Statutes relating to actions concerning real prop- 
 erty shall apply to actions brought under the Code, according to 
 the subject-matter of the action, and without regard to its form. 
 (Code, § 455.) It is further provided by the Code, that no cause 
 of action or defense to an action founded upon the title to real 
 property, or to rents or services out of the same, shall be effectual, 
 unless it appear that the person prosecuting the action, or making 
 the defense, or under whose title the action is prosecuted, or the 
 defense is made, or the ancestor, predecessor, or grantor of such 
 person, was seised or possessed of the premises in question, within 
 twenty years before the committing of the act, in respect to which 
 such action is prosecuted or defense made. (Code, § 79.) It will 
 be observed, that the same principle is extended as well to the 
 defense of the action as to its prosecution, when founded upon the 
 title to real property, or to rents or services out of the same. 
 
 The statute has given a legislative definition of the efi'ect of an 
 entry, by declaring, that no entry upon real estate shall be deemed 
 sufficient or valid as a claim, unless an action be commenced there- 
 upon within one year after the making of such entry, and within 
 twenty years from the time when the right to make such entry 
 descended or accrued. (Code, § 80.) „ 
 
 In every action for the recovery of real property, or the posses- 
 sion thereof, the person establishing a legal title to the premises is 
 presumed to have been possessed thereof within the time required 
 by law ; and the occupation of such premises by any other person 
 will be deemed to have been under and in subordination to the 
 legal title, unless it appear, that such premises have been held and 
 possessed adversely to such legal title for twenty years before the 
 commencement of such action. (Code, § 81.) 
 
 This section settles, by legislative enactment, a doctrine which 
 had long been tolerably well settled by the decisions of the courts, 
 viz., that the presumption is, that every actual possession of real 
 property is under and in subordination to the legal title. ( Vide 
 Jackson v. Sharp, 9 Johns. E. 163. 'Wickham v. ConTdin, 8 ib. 
 228. Jackson v. Thomas, 16 ib. 293.) 
 
 With respect to what shall constitute an adverse possession, the 
 statute declares, that, whenever it shall appear that the occupant, 
 or those under whom he claims, entered into the possession of 
 
THE STATUTE OF LIMITATIONS OF NEW YORK. 103 
 
 premises under claim of title, exclusive of any other right, found- 
 ing such claim upon a written instrument, as being a conveyance 
 of the premises in question, or upon the decree or judgment of a 
 competent court, and that there has been a continued occupation 
 and possession of the premises included in such instrument, decree 
 or judgment, or of some part of such premises, under such claim 
 for twenty years, the premises so included shall be deemed to have 
 been held adversely, except that, when the premises so included 
 consist of a tract divided into lots, the possession of one lot shall 
 not be deemed a possession of any other lot of the same tract. 
 (Code, § 82.) 
 
 The statute further declares, that, for the purpose of constituting 
 an adverse possession, by any person claiming a title founded upon 
 a written instrument, or a judgment or decree, land shall be deemed 
 to have been possessed and occupied : (1) where it has been usually 
 cultivated or improved ; (2) where it has been protected by a sub- 
 stantial inclosure ; (3) where, although not inclosed, it has been 
 used for the supply of fuel, or of fencing timber, for the purposes 
 of husbandry, or the ordinary use of the occupant ; (4) where a 
 known farm or a single lot has been partly improved, the portion 
 of such farm or lot that may have been left not cleared or not 
 inclosed, according to the usual course or custom of the adjoining 
 country, shall be deemed to have been occupied for the same length 
 of time as the part improved and cultivated. (Code, § 83.) 
 
 But, where it shall appear that there has been an actual con- 
 tinued occupation of premises under a claim of title, exclusive of 
 any other right, but not founded upon a written instrument, or a 
 judgment or decree, the premises so actually occupied, and no 
 other, shall be deemed to have been held adversely. (Code, § 84.) 
 
 For the purpose of constituting an adverse possession, by a per- 
 son claiming title not founded upon a written instrument, or a 
 judgment or decree, land shall be deemed to have been possessed 
 and occupied only, (1) where it has been protected by a substantial 
 inclosure ; (2) where it has been usually cultivated and improved. 
 (Code, § 85.) 
 
 Whenever the relation of landlord and tenant shall have existed 
 between any persons, the possession of the tenant shall be deemed 
 the possession of the landlord until the expiration of twenty years 
 from the termination of the tenancy ; or, where there has been no 
 written lease until the expiration of twenty years from the time 
 
104 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of the last payment of rent, notwithstanding that such tenant may 
 have acquired another title, or may have claimed to, hold adversely 
 to his landlord. But such presumptions will not be made after 
 the periods thus limited. (Code, § 86.) 
 
 And it is expressly declared, that the right of a person to tho 
 possession of any real property shall not be impaired or affected 
 by a descent being cast in consequence of the death of a person 
 in possession of such property. (Code, § 87.) 
 
 If a person entitled to commence any action for the recovery of 
 real property, or to make an entry or defense founded on tlie title 
 to real property, or to rents or services out of the same, be, at the 
 time such title shall first descend or accrue, either, (1) within the 
 age of twenty-one years ; (2) insane ; (3) imprisoned on a criminal 
 charge, or in execution upon conviction of a criminal offense, for 
 a term less than for life ; (4) a married woman, the statute declares 
 that the time during which such disability shall continue shall not 
 be deemed any portion of the time limited for the commencement 
 of such action, or the making of such entry or defense ; but such 
 action may be commenced or entry or defense made after the 
 period of twenty years, and within ten years after the disability 
 shall cease, or after the death of the person entitled, Avho shall die 
 under such disability ; but such action cannot be commenced, ob 
 entry or defense made, after that period. (Code, § 88.) 
 
 It will be observed that there is a great similarity between the 
 material provisions of the statute of limitations now in force. in 
 the state of New York, and those of the statute of 3 and 4 Wil- 
 liam lY, ch. 27, of England, showing vqyj clearly that both acts 
 were framed from the same model. The construction, therefore, 
 ■which the courts have given to either act, may be regarded as 
 applicable to both. The statute of New York has often been 
 before the courts for judicial construction, but it is not proposed 
 to make any thing more than a very cursory reference to tho 
 decisions in this place. 
 
 The rule in respect to actions in favor of the people, under the 
 statute of New York, seems to be different in some respects than 
 that relating to actions by individuals. In the first place, the 
 people have forty years after tlieir right of action accrued, within 
 which to commence proceedings ; while individuals ordinarily are 
 limited to twenty years ; and in the second place, an individual 
 claimant must prove title in himself before lie can call upon the 
 
TSE STATUTE OF LIMITATIONS OF NEW TOEK. 105 
 
 % 
 
 defendant in possession to respond ; wliile in the case of the people, 
 the rule is different. The people are presumed to have the title ; 
 and until that is actually shown to be out of them, the presump- 
 tion is, that the occupation is in subordination to the title of the 
 people. So that, as against the people, the defendant must show 
 title in liimself, or a continuous possession of forty years, or be 
 ousted. {Vide The Peo-ple v. Van Rensselaer, 8 Barb. K. 189.) 
 
 The people of the state, in their right of sovereignty, are deemed 
 to possess the original and ultimate property in and to all lauds 
 within the jurisdiction of the state, and in an action of ejectment 
 in their name, proof that the premises claimed were vacant and 
 unoccupied within the period necessary to be shown to establish 
 title by adverse possession against them, is sufficient in the first 
 instance to authorize a recovery. {Wendell v. The People, 8 
 Wend. R. 183.) This proposition necessarily follows, from the 
 fact of their being the source of title, as there can be no deduction 
 of it shown, and, in ordinary cases, no actual possession. {The 
 People v. Denison, 17 Wend. E. 312.) 
 
 It was not the intention of the legislature, in passing the statute 
 of limitations, to defeat a title in the people which accrued more 
 than forty years before suit brought, unless the land had been held 
 for that period in hostility to the title; an action by the people, 
 therefore, to recover lands, is not barred by the statute, unless it 
 be shown that there has been an adverse possession of forty years 
 before the commencement of the suit. {The People v. Arnold, 4 
 N. Y. E. 508.) 
 
 In the action of ejectment between private parties, the defend- 
 ant in possession is presumed to have the title until the contrary 
 appears. So the plaintiff, in such a case, may prove his i\t\& prima 
 facie by showing a conveyance from a grantor who was the occu- 
 pant at the time of the grant. A prior possession, even without 
 any -proof of a paper title, will prevail against an intruder. Title 
 in a private person supposes a grant from the state or sovereign 
 power. The presumptions founded on possession alone are, there- 
 fore, presumptions in favor of such a grant, and probably these 
 presumptions will be recognized where the state itself is the 
 claimant. A person in possession of land is supposed to have 
 acquired the title which the people or the sovereign once held. 
 
 This is the general rule, and the people themselves, when they 
 Bue, are not wholly exempt from its operation j yet a strict appli- 
 14 
 
106 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 I 
 
 cation of the principle to such cases would be highly inconvenient, 
 because the people, being the source of title, have usually no other 
 means of proving that they are the owners. An advantage is 
 therefore conceded to them which an individual does not possess, 
 when they are the plaintiffs, the presumption in favor of the defend- 
 ant, arising from a present occupancy, is shifted to the other side 
 on showing that the possession has been vacant at any time within 
 forty years, which is the period required to bar such an action by 
 adverse possession. In respect to lands which are wholly unoccu- 
 pied, the presumption may be a just and convenient one, that the 
 people are the owners ; but where it is not shown that such has 
 been the condition of the property within the period named, no 
 such presumption exists against the actual possession of the defend- 
 ant. This doctrine has been recognized by the Court of Appeals 
 in a very able opinion, in which all of the judges concurred, with 
 the exception of one judge, who gave a dissenting opinion. {The 
 People V. The Rector, etc., of Trinity Church, 22 N. Y. 44. Wells, 
 J., dissenting, held, that the declaration of the organic law, that 
 " the people of this State, in their right of sovereignty, are deemed 
 to possess the original and ultimate property in and to all lands 
 within the jurisdiction of this State," establishes inconti'overtibly 
 the proposition that the title to all the lands in the state is owned 
 and held by, or has been derived, either immediately or remotely, 
 from the people or their predecessor, the crown of England ; that 
 it is equivalent to the most conclusive evidence, that they, at some 
 period in the past, were the absolute owners of all and every part 
 of the lands of the state ; and hence, that in an action by them to 
 recover possession of any such part, all that is necessary to prove 
 in the first instance, to sustain the action and put the defendant on 
 the defense, is, that the defendant was an actual occupant of the 
 premises ; or, in case there was no such occupant, that he was 
 exercising acts of ownership thereon, or claimed title thereto, or 
 some interest therein, at the time of commencement of the action. 
 He further argued, that to require the people to prove the premises 
 vacant at any time, in view to put the defendant to his defense, 
 would be violating law as well as logic ; and would overturn and 
 subvert the doctrine of presumption in similar cases, as established 
 by a long and unbroken course of judicial decision, and would in- 
 troduce an unwarrantable distinction in the application of the rule 
 between eases where the people and those where individuals were 
 
THE STATUTE OF LIMITATIONS OF NEW YOBK. lOY 
 
 plaintiffs ; that a defense of the statute bar is an affirmative one, 
 and should be proved like any other affirmative defense. 
 
 The court held, however, as before stated, that there is no pre- 
 sumption of title in favor of the people, against the actual occu- 
 pant of land, until it is shown that the possession has been vacant 
 within forty years. 
 
 It has also been held, that, whatever will constitute an adverse 
 possession within the meaning of the statute relating to individ- 
 uals, if continued forty years under the provision relating to action 
 by the people, gives to tlie person in possession a perfect title as 
 against the people. It is supposed from certain provisions of the 
 Revised Statutes, and the reviser's notes to section 14 of title 17, of 
 chapter 8, of part 3 of the Eevised Statutes, that the legislature in- 
 tended to put an end to prerogative ; and that the same rules should 
 be applied to an action between the people and a citizen, as between 
 one citizen and another. (The People v. Clarke, 10 Barb. 120.) 
 The original note of the revisors, referred to, is to the following 
 effect : " The course of legislation has very wisely swept away 
 almost every prerogative of the crown, except that of ubiquity in 
 courts. The statute of limitations is extended to the claims and 
 demands of the people, and they are made liable'"for costs in cer- 
 tain cases ; and it is believed they ought not to have any exemp- 
 tion from the ordinary course of justice." (3 E. S. 2d ed. 778.) 
 
 TJie doctrine of adverse possession in the state of New York 
 had become pretty well settled at the time the Revised Statutes 
 took effect in 1830. Upon this subject the revisors said : " The 
 rules respecting adverse possession are rather subtle and refined ; 
 but they have been so long the subjects of judicial exposition, that 
 many of them can now be stated with clearness and precision. 
 In conformity to the uniform practice of the revisors, they propose 
 to fix those rules by legislative enactment: 1, because they are 
 essentia] to an understanding of the statute of limitations; 2, 
 that they may be made permanent, and preserved from the fluc- 
 tuations of opinions ; and, 3, that the community at large may 
 have the means of knowing the most important laws respecting 
 the enjoyment of their property." (3 E. S. 2d ed., 699.) But 
 any extended remarks upon the subject of adverse possession will 
 be reserved for another part of this work. > 
 
 The statute of limitations, with respect to real property does 
 not begin to run from the time the tenant came into possession, 
 
108 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 but from the time of his holding adversely. If, therefore, a party 
 enters without claim or color of title, and afterward obtain a good 
 or colorable title, the adverse possession will commence from that 
 period. {Jackson v. Parlcer, 3 Johns. Ch. E. 124. Jackson v. 
 Thom.fson, 16 Johns. E. 273. Jackson v. Newton, 18 ib. 355.) 
 
 Neither does the law allow successive disabilities of different 
 persons taking the same estate by devise or descent from each 
 other. Hence, when an adverse possession begins to run in the 
 life-time of the ancestor, jiJ^'.cctfitimXes:, to. run,.thou^i the lajjd 
 descends to a person under a disability. {Carpenter v. ScTiemerliorn, 
 2 Barb. Ch. E. 314. Jackson v. Moore, 13 Johns. E. 513. Jack- 
 son V. liobins, 15 ib. 169.) Upon this principle, where a female 
 having an interest in real estate is under a disability in her life- 
 time, by reason of coverture, whicli prevented her bringing an 
 action of ejectment, her heirs must bring their suit within ten 
 years after her death, and where one of these heirs was also 2. feme 
 covert at the death of her mother, it was held that that circum- 
 stance would not have the effect to extend the period within 
 which the ejectment must be brought. (Carpenter v. SchemerJiorn, 
 supra.) 
 
 It lias been definitely held, that under the statute of limitations 
 of N"ew York, if an adverse possession commence in the lifetime 
 of the ancestor, it will continue to run against the heir, notwith- 
 standing any existing disability on the part of the latter, when 
 the right accrues to him or her. {Fleming v. Griswold, 3 Hill's 
 E. 85.) 
 
 Although an alien may not acquire title to real estate, as against 
 the true owner, by adverse possession of twenty years, claiming 
 title thereto in himself, yet the statute of limitations will furnish 
 a perfect defense to an action of ejectment against him by a true 
 owner. {Overing v. Russell, 32 Barb. E. 263.) 
 
 By the laws of JSTew Jersey, no person who has, or may have 
 any right or title of entry into any lands, tenements or heredita- 
 ments, can make any entry therein, but within twenty years next 
 after such right or title shall accrue, and such person is barred 
 from any entry afterward ; and every real, possessory, ancestral, 
 mixed, or other action, for any lands, tenements, or hereditaments, 
 must be brought or instituted within twenty years next after the 
 right or title thereto, or cause of such action shall accrue, and not 
 after ; provided, always, that the time during which the person 
 
THE STATUTE OF LIMITATIONS OF NEW JEESET. 109 
 
 ■who has, or shall have such I'ight or title, or cause of action, shall 
 have been under the age of twenty-one years, feme covert, or 
 insane, shall not be taken or computed as part of the said limited 
 period of twenty years. It is further provided, that no person or 
 persons, bodies politic or. corporate, shall be sued or impleaded by 
 the state of New Jersey, for any lands, tenements or heredita- 
 ments, or for any rents, revenues, issues or profits thereof, but within 
 twenty years after the right, title, or cause of action to the same 
 shall accrue,, and not after. 
 
 In case the judgment given for the plaintiff in a real action shall 
 be reversed by writ of error, or if a verdict pass for the plaintiff, 
 and upon matter alleged in arrest of judgment, the judgment be 
 given against the plaintiff, then such plaintiff, his or her heirs, 
 executors or administrators, as the case shall require, may com- 
 mence a new action within one year after such judgment reversed or 
 given against the plaintiff, and not after. (Act of Yth February, 
 1799, §§ 9, 10, 12, 13. Nixon's Dig. K J. Laws, 1855, p. 436.) 
 
 It would seem to be quite obvious that, under the New Jersey 
 act, twenty years' undisturbed possession of lands bars the action 
 of ejectment ; and the question would seem to be sp clear that 
 there was no occasion for judicial construction. Eut the matter 
 has .been before the courts of the state, and judicially settled in 
 accordance with the above proposition. {Den v. Wright, 12 
 Halst. E. 175.) 
 
 The lessor of the plaintiff, in an action of ejectment in New 
 Jersey, must always count upon and show possession of the land 
 within the time to which the right of entry is limited, viz., within 
 twenty years next before the action is brought. But he need not 
 show a possession of twenty complete years, or any number of 
 years, further than is necessary to constitute a full and peaceable 
 possession. {Den v. Morris, 2 Halst. E. 6.) 
 
 It has been held that the New Jersey statute of limitations 
 applies to actions brought to recover dower. {Berrien v. Conover, 
 1 Har. E. 107.) 
 
 The statute of New Jersey, for the limitation of.suits respect- 
 ing title to lands, does not begin to run against a reversioner or 
 remainderman until after the estate for life is terminated. So 
 long as estates in remainder or reversion are permitted to exist, 
 the courts of New Jersey very properly hold that tliey must be 
 protected, by allowing a claimant a reasonable time after his right 
 
110 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 accrues, to commence his action. {Bruen v. Burrage, 31 N". J. 
 E. 21.) 
 
 It is held that the statute of limitations -will run against the 
 board of proprietors in ISTew Jersey, and that twenty years' adverse 
 possession of lands will bar their right of entry or recovery. 
 {Empson v. Giherson, 1 Butcher's E. 1.) 
 
 CHAPTEE YI. 
 
 THE STATUTE OF LIMITATIONS AS A BAE TO THE ACTION OF EJECTMENT — 
 LAWS OF THE NEW ENGLAND STATES. 
 
 By the statutes of Maine, no person can commence any real or 
 mixed action for the recovery of lands, or make any entry thereon, 
 unless within twenty years after the right to make such entry or 
 bring such action first accrued ; or -within twenty years after he, 
 or those under or from whom he claims, shall have been seised or 
 possessed of the premises. But if such right or title first accrued 
 to an ancestor or predecessor of the person who brings the action 
 or makes the entry, or to any other person from, by, or under 
 whom he claims, the said twenty years shall be computed from the 
 time when the right or title so first accrued to such ancestor, pre- 
 decessor or other person. If a person is disseised, his right of 
 entry is deemed to have accrued at the time of such disseisin. If 
 he claims as heir or devisee of one who died seised, his right is 
 deemed to have accrued at the time of such death, unless there is 
 a tenancy by the curtesy or other estate, intervening after the 
 death of such ancestor or devisee; in which case his right is 
 . deemed to accrue when such intermediate estate shall expire, or 
 when it would have expired by its own limitation. When there 
 is such an intermediate estate, and in all cases when the party 
 claims by force of any remainder or reversion, his right, so far as 
 .t is afiected^by the limitation prescribed, is deemed to accrue 
 when the interniediate estate would have expired by its own limi- 
 tation, notwithstanding any forfeiture thereof, for which he might 
 have entered at an earlier time. No person is prevented from 
 entering, when entitled to do so, by reason of any forfeiture or 
 breach of condition ; but, if he claims under such a title, his right 
 
THE STATUTE OF LIMITATIONS OF MAINE. IH 
 
 is deemed to have accrued when the forfeiture was incurred or the 
 condition broken. 
 
 In all cases not specially provided for, the right of entry is 
 deemed to have accrued when the claimant, or the person under 
 whom he claims, first became entitled to the possession of the 
 premises under the title upon which the entry or action is founded. 
 
 If any minister or other sole corporation shall be disseised, any 
 of his successors may enter upon the premises, or may bring an 
 action for the recovery of them, at any time within five years after 
 the death, resignation or removal of the person disseised, notwith- 
 standing the twenty years after the disseisin shall have expired. 
 
 If at the time when such right of entry or any action upon or for 
 any lands shall first accrue, the person entitled to such entry or 
 action shall be within the age of twenty-one years, or a married 
 woman, insane, imprisoned, or absent from the United States, 
 such person, or any one claiming from, by, or under him, may 
 make the entry or bring the action at any time within ten years 
 after such disability shall be removed, notwithstanding the twenty 
 years' limit shall have expired. And if the person first entitled 
 to make such entry or bring such action shall die during the con- 
 tinuance of any of the disabilities mentioned, and no determin- 
 ation or judgment shall have been had of or upon the title, right 
 or action which accrued to him, the entry may be made or the 
 action brought, by his heirs, or any other person claiming from, 
 by, or under him, at any time within ten years after liis death, 
 notwithstanding the said twenty years shall have elapsed ; but no 
 such further time for making such entry or bringing such action, 
 beyond what is prescribed, will be allowed, by reason of the dis- 
 ability of any other person. 
 
 When a tenant in tail, or a remainderman in tail, shall die 
 before the expiration of the period limited for ntaking such entry 
 or bringing an action for lands, no person claiming any estate, 
 which such tenant in tail or remainderman might have barred, 
 can make an entry or bring an action to recover such land, but 
 within the period during which the tenant in tail or remainderman, 
 if he had so long lived, might have made such entry or brought 
 such action. 
 
 No real or mixed action, for the recovery of lands, can be com- 
 menced by or on behalf of the state, unless within twenty years 
 next after the time of the accruing of the title to the state. 
 
112 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 When any writ, in a real or mixed action, shall fail of suiBcient 
 service or return, by an unavoidable cause, or by tJie default or 
 negligence of any oiBcer to wlioni it was delivered or directed for 
 service, or when such writ shall be abated, or the action otherwise 
 avoided or defeated for any matter of form, or by the death or 
 intermarriage, or other disability of either party, accruing since 
 the last continuance, or if a judgment for the demandant shall be 
 reversed on writ of error, the demandant may commence a new 
 action at any time within six months after abatement or determin- 
 ation of the first suit, or reversal of the judgment of the same. 
 
 To constitute a disseisin, or such exclusive and adverse posses- 
 sion of lands as to bar or limit the right of the true owner thereof 
 to recover the same, it will not be necessary that such lands shall 
 be surrounded with fences or rendered inaccessible by water; but 
 it is declared to be sufficient if the possession, occupation and 
 improrement are open and notorious, and comporting with' the 
 ordinary management of a farm ; although that part of the' same 
 which composes the woodland belonging to such farm, and used 
 therewith as a wood lot, shall not be inclosed, as before mentioned. 
 (Eevised Statutes of Maine, 1857, tit. 9, ch. 105.) 
 
 It would seem that the statute of limitations does not run in 
 favor of one, against another tenant in common. If, however, 
 there has been an actual ouster and adverse holding, the statute 
 of limitations will run from the time of such ouster and adverse 
 possession. ( Vide Braokett v. Norcross, 1 Greenl. E. 91.) 
 
 The statute further provides that no real or mixed action for the 
 recovery of any lands shall be commenced or maintained against 
 any person in possession thereof, when such person, or those under 
 whom he claims have been in actual possession for more than forty 
 years, claiming to hold them by adverse, appreciable, notorious 
 and exclusive possession, in their own right. (R. S., tit. 8, ch. 
 106, § 15.) 
 
 A person who enters a tract of land under a deed duly regis- 
 tered from one having no legal title, and continues to improve a 
 part of it for a sufficient time, thereby obtains a title by disseisin 
 to the extent of the bounds of the whole tract ; unless there be 
 other controlling facts; and the result will be the same, if the 
 grantee acquired a perfect title under his deed to that portion of 
 the tract which he occupied and whereon he resided. {JSfoyes v. 
 Dyer, 25 Maine R. 468.) 
 
T^E STATUTE OF LIMITATIONS OF NEW BAMPSHIRE. 113 
 
 By tlie statutes of New Hampshire, no action for the recovery 
 of any real estate can be maintained, unless such action is brought 
 within twenty years after the right first accrued to the plaintiff or 
 to any person under whom he claims, to commence an action for 
 the recovery thereof. But if the person first entitled to maintain 
 an action for the recovery of such real estate was within the age 
 of twenty-one j^ears-, a married woman, or insane, at the time such 
 right accrued, such action may be commenced within five years 
 after such disability is removed. (Gen. Stat. 1867, ch. 202, §§ 1, 2.) 
 
 The statute of New Hampshire does not define the character of 
 the possession which may be set up against the plaintiff iti an 
 action to recover real property ; the rule upon the subject must, 
 therefore, be derived from the judicial decisions. The remaris of 
 Chief Justice Marshall, in delivering the opinion of the Supreme 
 Court of the United States, in speaking of the rules applicable to 
 acts of limitation generally, will give light upon the subject. In 
 respect to such rules, he says : " One of these, which has been 
 recognized in the courts of England, and in all others where the 
 rules established in those courts have been adopted, is, that pos- 
 session, to give title, must be adversary. The word is not, indeed, 
 to be found in the statutes ; but the plainest dictates of common 
 justice require that it should be implied. It would shock that 
 sense of right which must be felt equally by legislators and by 
 judges, if a possession which was permissive and entirely consist- 
 ent with the title of another should silently bar that title. 
 Several cases have been decided in this court, in which the prin- 
 ciple seems to have been considered as generally acknowledged ; 
 and in the state of Pennsylvania, particularly, it has been 
 expressly recognized. To allow a different construction would be 
 to make the statute of limitations a statute for the encoiirage- 
 ment of fraud — a statute to enable one man to steal the title of 
 another by professing to hold under it. No laws admit of such 
 construction." {Kirk v. Smith, 9 Wheat. E. 241, 288.) 
 
 The courts of New Hampshire hold it to be a general rule, that, 
 if one enters upon land under color of title, he is presumed to 
 enter claiming according to the extent of his title, and to have 
 constructive possession of all which his title covers, lying in the 
 same tract ; but evidence of adverse possession is always to be 
 construed strictly ; and in order to make such possession effectual 
 to restrain a title, it must be shown to have been open, visible, 
 15 
 
114 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 exclusive and notorious ; calculated to give notice to the owner, 
 of an adverse claim, by the possessor, to the land in his possession. 
 A mere entry and occupation of lands by a stranger are held not 
 to divest the title, so as to oust the true owner of seisin. {Little v. 
 Downing, 37 N. H. R. 355. Vide also Hoag v. Wallace, 28 ib. 
 547. Gage v. Gage, 30 ib. 520. Tappan v. Tajppan, 31 ib. 41. 
 Campbell v. Campbell, 13 ib. 485. Woods v. Banks, 14 ib. 101. 
 Eale V. Glidden, 10 ib. 397. Smith v. Hosmer, 7 ib. 436.) 
 
 It is held, that the statute of limitations of New Hampshire 
 begins to run against a widow's claim of dower from the time 
 when her right accrues to a writ of dower, after demand, and not 
 from the time when she became entitled to dower upon the death 
 of her husband. By the Revised Statiites of the state, the suit is 
 to be brought within twenty years after the right accrues to com- 
 mence an action, and not within twenty years after the right or 
 title in the land accrues. No right of commencing an action 
 accrues to a widow until the tenant neglects to assign her dower 
 for one month after she has demanded it; and hence the rule 
 above stated. {Eobie v. Flanders, 33 N. H. R. 524.) 
 
 The effect of coverture and insanity upon the operation of the 
 statute of limitations has been fully discussed and considered in 
 a late case in New Hampshire, and it is held that the statute does 
 not run so long as either disability continues, and it is decided to 
 make no difference that the writ in which the disability was 
 pleaded had been brought by the husband and wife. (Pierce v. 
 Dustin, 24 N. H. R. 417. And vide Little v. Downing, supra.) 
 
 In the state of Vermont, no action for the recovery of any lands, 
 or for the recovery of the possession thereof, can be maintained, 
 unless the same is commenced within fifteen years next after the 
 cause of action first accrued to the plaintiff, or those luider whom 
 he claims ; and no person having right or title of entry into houses 
 or lands can thereinto enter, but within fifteen years next after 
 such right of entry shall accrue. 
 
 The statute also declares, that the right of any person to the 
 possession of any real estate shall not be impaired or affected by 
 a descent being cast in consequence of the death of any person in 
 possession of such estate. If any person entitled to bring such 
 action is, at the time when the cause of action accrues, a minor or 
 a married woman, insane or imprisoned, such person may bring 
 the said action within the time limited, after the disability shall 
 
TBB STATUTE OF LIMITATIONS OF VERMONT. 115 
 
 be removed. The limitation prescribed is made to apply to actions 
 brought in the name of the state. (Gen. Stat. 1863, ch. 63, §§ 1, 
 2,3,18,21.) 
 
 The character of the possession which will entitle the owner of 
 the land to his action, from the eommeucement of which the lim- 
 itation will run, is not defined by the statute, and consequently 
 the same must be supplied by judicial construction. 
 
 Cutting a road upon land, with a view to get timber, or to fell 
 trees in order to clear and cultivate,' has been held to constitute, 
 in connection with a written claim of title, a constructive posses- 
 sion to the whole tract described. {Spear v. Ralph, 14 Vt. B. 400.) 
 But an administrator in possession of lands, of which his intestate 
 died seised and possessed, does not hold adversely to the right of 
 his intestate, and cannot acquire a title in his own right by the 
 statute of limitations. {North v. Barnum, 12 Yt. E. 205.) 
 
 It has been held, that the possession of land taken under a deed 
 from a husband and wife, without a certificate of such an acknoM'l- 
 edgment by the wife as the statute requires, will not be adverse to 
 his rights while she remains under coverture. The statute of lim- 
 itations will commence running against her only from the death 
 of her husband. {Pratt v. Battels, 28 Yt. E. 685.) 
 
 It is held in Yermont, that an entry upon land by a stranger, 
 under claim of right, is an actual eviction of the owner, of which 
 he is bound to take notice, at the peril of losing his estate, after 
 tiie lapse of fifteen years. In England, as well as in many of the 
 American states, the courts have held, that an entry upon land by 
 a stranger, or one deriving title from a stranger, or one holding a 
 subordinate estate, is only an eviction at the election of him who 
 has the legal estate ; while, in Yermont, it seems the courts hold 
 such entries by strangers, under claim of right, to be an actual evic- 
 tion of the owner, of which he is bound to take notice, at the peril 
 of losing his estate, after the lapse of fifteen years, and generally, 
 where the possession, being in one who may fairly be presumed to 
 hold in subordination to the legal title, such possession cannot' 
 become adverse, in such a sense, as to create title by lapse of time, 
 without the express or presumptive knowledge of him having the 
 superior estate. But it was thought this rule ought not to be ap- 
 plied in favor of a mortgagee, who is, in one sense, the owner of ' 
 the legal estate in the land, and in another, and the more just and ' 
 common sense, the possessor of a mere chattel interest, which it is 
 
116 LAW OF EJECTMENT AND ADVERS'E ENJOYMENT. 
 
 the duty of the mortgagor, after the selling of the land, to re- 
 move, and which, after the lapse of fifteen years, and no steps 
 taken by the mortgagee to enforce the mortgage, it may be pre- 
 sumed, he has done ; and the court held, that such a presumption, 
 in favor of a purchaser of the land, ought not to be rebutted short 
 of evidence tending to show, that he was made aware of the mort- 
 gagee's continued claim on the mortgage. ( Whitney v. French, 
 25 Vt. E. 663.) 
 
 Under the exception in the statute, providing, that, if any per- 
 son shall, at the time when the cause of action shall accrue, be a 
 minor or a married woman, insane or imprisoned, such person may 
 bring the action within the time limited, after the disability is 
 removed, the courts of Yermont uniformly hold, that, if the dis- 
 ability does not exist at the time the cause of action accrues, 
 the subsequent intervening of a disability does not prevent the run- 
 ning of the statute. This was so held quite recently in a case 
 where the plaintiff became insane after the cause of action 
 accrued, and the court held, that the statute commenced running 
 from the time the cause of action accrued, and continued to run, 
 notwithstanding the subsequent insanity of the plaintiff. {Lincoln 
 V. Norton, 36 Vt. E. 679.) 
 
 In Massachusetts, the general provisions of the statute of limita- 
 tions of real actions, and those of the state of Maine, are identical, 
 with respect to limiting the time of bringing the action or making 
 the entry, defining the time when the i-ight of action accrues, the 
 saving provisions in favor of those under legal disabilities, actions 
 brought by a minister or other sole corporation, and actions 
 brought by the commonwealth. In respect to these general pro- 
 visions, it is very evident that the Maine statute was originally 
 derived from that of Massachusetts, and reference may be had to 
 the provisions of the statute of Maine for the statute of Massachu- 
 setts. Besides^ the decisions of the courts under these general pro- 
 visions of the statute of either state are applicable to the statutes 
 of both states. 
 
 It is further provided by the Massachusetts statute, that no per- 
 son shall bo deemed to have been in possession of any lands within 
 the meaning of the act, merely by reason of having made any entry 
 thereon, unless he shall have continued in open and peaceable pos- 
 session of the premises, for the space of one year next after such 
 entry, or unless an action shall be commenced upon such entry 
 
TBE STATUTE OF LIMITATIONS OF MASSACSUSETTS. 117 
 
 and seisin, within one year after he shall he ousted or dispossessed 
 of the premises. 
 
 Again, the statute of Massachusetts declares, that when the right 
 of entry, or of action of a tenant in tail, or of a person entitled to 
 a remainder in tail, is barred by force of the statute, the estate tail, 
 and all remainders and reversions expectant thereon, shall be also 
 barred. 
 
 The provision limiting the time of making entry and bringing 
 an action in case of the death of a tenant in tail, or a remainder- 
 man in tail is identical with the Maine statute, and will be found 
 by referring to that statute. So, also, the provision in respect to 
 the time within which a new action may be brought, or the abate- 
 ment of a former action by the death of the party, or on reversal 
 or arrest of the judgment, is the same as that of Maine, and need 
 not be repeated here. 
 
 By the Massachusetts statute, it is provided that no descent or 
 discontinuance shall take away or defeat any right Df entry, or of 
 action, for the recovery of real estate. (Gen. Stat. 1860, ch. 154.) 
 When there is a mixed possession, the legal seisin is held to be 
 according to the title. (^Oodman v. Winslow, 10 Mass. E. 151. 
 Commonwealth v. Dudley, lb. 408.) 
 
 Although an alien may not take title to land by conveyance, as 
 against the commonwealth, yet such alien may acquire an inde- 
 feasible title to land, by a possession sufficiently long, by the stat- 
 utes of the state, to bar a suit by the commonwealth to recover 
 the same. {Piper v. Richardson, 9 Mete. R. 155.) 
 
 It seems that a reversioner may enter at any. time within twenty 
 years after the termination of the particular estate, notwithstanding 
 there has been a disseisin of the tenant of the particular estate, and 
 an adverse possession for more than twenty years, for the title of 
 the reversioner does not accrue until the particular estate is deter- 
 mined. It is a well-settled rule of law, that one claiming in rever- 
 sion, though he may, if he will, take notice of any disseisin done to 
 the tenant of the particular estate, is yet not obliged to do so, but 
 may wait until his right of entry accrues upon the death of the 
 tenant for life, and may then enter, how long soever the particular 
 tenant may have been disseised. Indeed, the reversioner has no 
 means of knowing with reasonable certainty, whether the party in 
 possession is in by disseisin, or under a title or license from the 
 tenant of the particular estate ; and in the latter case he would 
 
318 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 have no right of entry. Hence it has been held, that, where there 
 was a devise for life, remainder in fee, and the tenant for life neg- 
 lected to enter for more than twenty years, and died, this neglect 
 of entering amounted to a refusal of the devisee, and so a right of 
 entry accrued to him in remainder, after the expiration of tlie 
 twenty years ; but, nevertheless, another right of entry accrued 
 to him at the death of the tenant for life, and after this second 
 right of entry accrued, the remainderman was permitted to enter. 
 ( Wells V. Prince, 9 Mass. E. 508. 'Wallingford, v. Ilearl, 15 
 ib. 471. Tilson v. Thompson, 10 Pick. E. 359.) And inasmuch 
 as a reversioner is not bound to enter immediately for a disseisin 
 or a forfeiture by the tenant for life, but a new right of entry 
 accrues on the death of such tenant, the statute of limitations 
 begins to run against the reversioner from that time, how long 
 soever the tenant for life may have been disseised. {Miller v. 
 Swing, 6 Cush. E- 34.) But if there has been a disseisin when 
 the owner is subject to no disability, and after the lapse of time 
 reasonably sufficient to enable him to adopt all necessary measures 
 for the protection of his rights, a disability occurs before he has 
 resorted to, or adopted any such means, it will not interfere with, 
 delay or postpone the time for the operation of the statute of lim- 
 itations. It has been accordingly held, that, if the owner of land 
 has been disseised, his subsequent insanity does not prevent the 
 disseisor's title from maturing, by twenty years' adverse possession. 
 {Allis V. Moore, 2 Allen's E. 306. And vide Currier v. Gale, 3 ib. 
 328.) It will be observed that this rule is in accordance with the 
 rule laid down in the case of Lincoln v. Norton (36 Yt. 679), here- 
 inbefore cited. 
 
 The rule is stated generally in the text-books, and is found in 
 many adjudged cases, that no lapse of time is a bar to a direct 
 trust, and it is undoubtedly true, if taken with proper qualifications. 
 The possession of the trustee not being adverse to the cestui que 
 trust, as trustee tiien there is no limitation of time, unless there is 
 a clear repudiation of the trust, brought home to the party, so aa 
 to require him to act as upon a clearly adverse title. But where 
 the trustee sells the trust estate to a purchaser for value, with 
 warranty, and without any intimation, in the deed of conveyance, 
 of a subsisting trust, and the vendee enters and occupies the estate, 
 doing no act which recognizes in any manner the existence of the 
 trust, and no fraud or concealment, and the cestui que trust is 
 
TBE STATUTE OF LIMITATIONS OF RHODE ISLAND. 119 
 
 tinder no disability ; it was held, tliat the possession must be 
 regarded as adverse both to the trustee and the cestui que trust, 
 and that the trust which would bar the legal right is equally effect- 
 ual to bar the equitable right. {Merriam v. ffassam, li Allen's 
 E. 516. Vide Attorney- General v. Proprietors, of Federal 8t/reet 
 Meeting House, 3 Gray's li. 1.) 
 
 In Rhode Island, when any person or persons, or others, from 
 whom he or they derive their title, either by themselves, tenants, 
 or lessees, shall have been, for the space of twenty years, in the 
 uninterrupted, quiet, peaceable, and actual seisin and possession 
 of any lands, tenements or hereditaments, for and during the said 
 time, claiming the same as his, her, or their proper, sole, and right- 
 ful estate in fee simple, such actual seisin and possession shall 
 be allowed to give and make a good and rightful title to such 
 person or persons, their heirs and assigns forever ; any plaintiff 
 suing for the recovery of any such lands may rely upon such 
 possession as conclusive title thereto ; and the act being pleaded 
 in bar to any action that may be brought for such lands, tene- 
 ments or hereditaments, and such actual seisin and possession 
 being duly proved, will be allowed to be good, valid and effectual 
 in law, for barring the same. Pro.vided, that nothing in the act 
 shall be construed, deemed, or taken, to extend to prejudice the 
 rights and claims of persons under age, non compos mentis, feme 
 covert, or those imprisoned, or those beyond the limits of the 
 United States ; they bringing their suit therefor within the space 
 often years next after such impediment is removed. And provided, 
 also, that nothing in the act contained shall extend, or be con- 
 strued, or deemed to extend, to bar any person or persons having 
 any estate in reversion or remainder, expectant or depending, in any 
 lands, tenements or hereditaments, after the end or determination of 
 the estate for years, life or lives, such person or persons pursuing 
 his or their title by due course of law, within ten years after his or 
 their right of action shall accrue ; any thing in the act to the con- 
 trary notwithstanding. (Eev. 1Stat. 1857, ch. 148, §§ 2, 3, p. 339.) 
 
 The character of the possession entitling the party to the benefit 
 of the provisions of the Rhode Island statute must be determined 
 by principle and judicial authority, as no definitions seem to be 
 giyen in the statute itself. 
 
 The bar of the statute of limitations cannot, in Rhode Island, 
 be indefinitely postponed by continuances of process issued from 
 
120 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 term to term, as under the English practice and statutes ; but the 
 eighth section of chapter 177 of the Revised Statutes of the state, 
 allows one year, and one year only, after the defeat, from inability 
 to serve the writ, of an action commenced in due time, within 
 which to bring a new action for the same cause. {Taft v. Daggett, 
 6 E. I. E. 266.) 
 
 Finally, in Connecticut it is provided that no person shall make 
 entrj' into any lands or tenements but within fifteen years next after 
 his right or title shall first descend or accrue to the same ; and 
 every such person so not entering, and his heirs, shall be utterly 
 disabled to make such entry afterward ; and no such entry shall 
 be sufficient, unless an action shall be commenced thereupon, and 
 prosecuted with effect, within one year next after the making thereof; 
 provided, nevertheless, that if any person who has, or shall have, 
 such right or title of entry into any lands or tenements, be, or 
 shall be, at the time of the first descending or accruing of said 
 right or title, within the age of twenty-one years, feme covert, 
 non compos mentis, or imprisoned, then such person and his heirs 
 may, notwithstanding the expiration of the fifteen years, bring 
 such action or make such entry as he might have done before the 
 expiration of the said fifteen years, so as such person shall, within 
 five years next after full age, discoverture, coming of sound mind, 
 enlargement out of prison, or the heirs of such person shall, 
 within five years after the death of such person, bring such action 
 or make such entry, and take benefit of the same. Upon the 
 reversal of a judgment in favor of the plaintiff in an action to 
 recover real property, a new action may be brought for the same 
 purpose, within one year after such reversal. (Gen. Stat. 1866, 
 p. 551.) 
 
 It will be observed that the Connecticut statute contains no 
 definitions, and hence resort must be had to principle and the 
 decisions of the courts in this case also. In many respects, how- 
 ever, the statutes of several of the New England states are quite 
 similar, and consequently the construction placed upon them by 
 the courts may have more than a local application. 
 
 When a husband and wife, being seised in fee of certain real 
 estate, executed a release deed thereof, absolute in form, but upon 
 the expressed condition and really to secure the payment of money 
 loaned by the grantee to the grantors, in three years from the date 
 of the conveyance, and the releasees immediately took possession 
 
THE STATUTE OF LIMITATIONS OF CONNECTICUT. 121 
 
 of the land, and continued in the uninterrupted occupancy thereof 
 for more than fifteen years after the expiration of the three years 
 mentioned in the condition, taking the rents and profits as owners 
 of the land ; it was held that the wife's right of entry into the premi- 
 ses was barred by the statute of limitations, and therefore her right 
 to redeem the same was precluded by the adverse possession of the 
 releasees. {Jarvis v. Woodruff, 22 Conn. R. 548. And vide Gay- 
 lord V. Couch, 5 Day's R. 223.) 
 
 The right of the wife in her land is not barred, by fifteen years' 
 adverse possession, during the coverture, but is saved by the pro- 
 viso of the statute of limitations ; and, therefore, it was held, 
 that an action of ejectment, in the name of the husband and wife, 
 to recover such land, may be sustained, notwithstanding such 
 adverse possession. The statutes of limitations are founded upon 
 the idea, that a person who has rights will assert them.; and tliat 
 he shall not be presumed to neglect the pursuit of property belong- 
 ing to him for fifteen years, as well as upon the idea that deeds 
 and other evidences of property may be lost. They rest also on 
 principles of public policy. Interest reipublicoB ut sit litium. 
 But the rights of certain persons who are not sui juris, and are 
 incapable of prosecuting their actions, are, by the proviso of the 
 Connecticut statute of limitations, excepted from the operations 
 of the enacting clause. ( Watson v. Watson, 10 Conn. R. 77.) 
 
 "Where a person devised her real estate to her four children, to 
 be equally divided between them, and to the heirs of their body 
 forever, and afterward died. The devisees, all being without issue, 
 soon afterward mutually agreed not to ofier the will to probate, 
 and accordingly retained it in their possession. "Within ten years 
 after the death of the testatrix, all of the devisees were of full age, 
 and one of them had issue of his body born, who in the course of 
 three years died, and in two years after his child ofiiered the grand- 
 mother's will for probate, to which certain lona fide creditors of 
 the father and purchasers from him, without knowledge of the 
 will, objiected, on the; ground that the probate of it was barred by 
 the statute of limitations. The cpurt held (1) that the bar of the 
 statute was perfected against all the immediate devisees, while 
 they were of full age, and before any heir in tail became inter- 
 ested in the estate ; (2) that no person is within the saving clause 
 of the statute, except a minor, who has a vested interest in the 
 estate at the death of the testator; (3) that the heir in tail in the 
 16 
 
122 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 case in question must take by descent from Iier father, and not by 
 purchase from the testatrix ; (4) that the entire right of the father 
 being barred, his child could take nothing from him by descent, 
 and consequently was not interested in the estate, and was not 
 entitled to prove the will ; and (5) that the suppression of the will 
 by the devisees did not preclude honafide creditors and purchasers, 
 though claiming under the deceased devisee, from interposing the 
 protection of the statute. {Goodman v. liuss, 14 Conn. E. 210.) 
 
 CHAPTEE VII. 
 
 THE STATUTE OF LIMITATIONS AS A BAE TO THE ACTION OF EJECTMENT. 
 THE LAWS OE THE MIDDLE AND WESTERN STATES, EXCEPT THOSE OF 
 NEW YOKE AND NEW JERSEY, GIVEN IN A PREVIOUS CHAPTER. 
 
 In the state of Pennsylvania, no person or persons can make 
 entry into any manors, lands, tenements or hereditaments, after 
 the expiration of twenty-one years next after his, her or their right 
 or title to the same j&rst descended or accrued ; nor can any person 
 or persons whatsoever have or maintain any writ of right, or any 
 other real or possessory writ or action, for any manors, lands, tene- 
 ments or hereditaments, of the seisin or possession of him, her or 
 themselves, his her or their ancestors or predecessors, nor declare 
 or allege any other seisin or possession of him, her or themselves, 
 his, her or their ancestors or predecessors, than within twenty-one 
 years next before such writ, action or suit, sued, commenced or 
 brought ; provided, that if any person or persons having such right 
 or title be, at the time such right or title first descended or accrued, 
 within the age of twenty-one years, y^TOe covert, non compos mentis 
 or imprisoned, then such person or persons, and the heir or heirs of 
 such person or persons, may bring his or their action, or make his or 
 their entry, so as such person or persons, or the heir or heirs of 
 such person or persons, shall, within ten years next after attaining 
 full age, discoverture, soundness of mind or enlargement out of 
 prison, take benefit of or sue for the same, and no time after the 
 said ten years ; and in case such person or persons shall die within 
 the said term of ten years, under any of such disabilities, the heir 
 
THE STATUTE OF LIMITATIONS OF PENNSYLVANIA. 123 
 
 or heirs of such person or persons will have the same benefit that 
 such person or persons could or might have had by living until . 
 the disabilities should have ceased or been removed ; and if any 
 abatement happen in any proceeding or proceedings upon such 
 right or title, the same may be renewed and continued within three 
 years from the time of such abatement, but not afterward. But 
 in no case can the time be extended in favor of persons under dis- 
 abilities beyond thirty years from the time the right of entry 
 accrues. 
 
 In the city and county of Philadelphia, the entry may be made 
 or action brought at any time within forty years after the right 
 first accrued. 
 
 As between parties other than the commonwealth, thirty years' 
 possession of land is evidence that the commonwealth has parted 
 with the title ; and as against the commonwealth, twenty-one 
 years' possession perfects a defeasible estate. (Purdon's Dig. 
 Laws, 1861, pp. 652, 653, 654.) 
 
 The general rule is, that after a sale of land, and before a con 
 veyance of a legal title, the vendor is the trustee of the vendee, 
 and the act of limitations will have no operation. But when the 
 vendor disavows the trust, and, after having delivered possession to 
 the vendee, makes a lease to a third person in opposition to the 
 title of the vendee, and the lessee enters and holds possession, the 
 jury may presume a disseisin ; and if the vendee sufifers twenty 
 years to elapse without prosecuting his claim, it will be barred by 
 the statute of limitations. {Pipher v. Lodge, 4 Serg. & Rawle's 
 R. 310.) 
 
 Title by improvement is merely a right of pre-emption, until 
 the purchase is made from the commonwealth. Up to that time 
 possession is not adverse to, but under the commonwealth ; and, 
 therefore, though it continues twenty-one years, it is no bar by the 
 statute of limitations against the state, or her grantee. {Morris \. 
 Thomas, 5 Binn. E. 77.) 
 
 In all cases, for the statute of limitations to operate as a bar, 
 the possession must be adverse. {Morris' Lessee v. Van Deren, 
 IDall. E. 67.) 
 
 If one tenant in common sell the whole tract and possession be 
 held adversely for twenty-one years, the sale and possession 
 amount to an ouster of the co-tenant, who is barred by the act of 
 limitations. {Cutler v. Motser, 13 Serg. and Eawle's E. 356.) 
 
124 LAW OF EJECTMENT AtfD ADVERSE ENJOYMENT. 
 
 In Delaware, no person or persons can make an entry into any 
 lands, tenements, or hereditaments, but within twenty years next 
 after his, her or their right or title first descended or accrued ; 
 nor can any person or persons have or maintain any writ of right, 
 or any action, real, personal or mixed, for, or make any prescription 
 or claim to or in any lands, tenements or hereditaments, of the 
 seisin or possession of him, her or them, his, her or their ancestor 
 or predecessor, and declare and allege in any manner whatever of 
 further seisin of him, her or them, his, her or their ancestor or 
 predecessor, but only an ac'tual seisin or possession of him, her or 
 them, his, her or their ancestor or predecessor, of the premises 
 sued for or claimed within twenty years next before such writ or 
 action had or brought. Provided, that any person having any 
 such right or title of entry who is, at the time of such right or 
 title, first descended or accrued, an infant, /ewe covert, non compos 
 mentis, or a prisoner, then such person, or the heirs of such person, 
 may, within ten years next after the removal of such disability, 
 but not afterward, proceed, notwithstanding the said twenty years 
 be expired, as might have been done before the same were ex- 
 pired ; and if any such person die under any of s-uch disabilities, 
 the heirs of such person have the like benefit that such person 
 might have had by living till the disability had ceased. (Del. 
 Code, 1852, ch. 122J p. 439.) 
 
 The general statute of 1843, ninth volume of Delaware Laws, 
 457, and Revised Code, 3, which provides that twenty years' 
 peaceable and uninterrupted possession of all the vacant lands, 
 "with the exception of salt marshes belonging to the state, shall bar 
 any claim of title on the part of the state thereto, is held not to 
 be merely retroactive, but is prospective also in its operation and 
 effect. {Records v. Melson, 1 Houston's E. 139.) 
 
 In the state of Maryland, whenever land is taken up under a 
 common or special warrant, or warrant of re-survey, escheat, or 
 proclamation warrant, any person, body politic or corporate, may 
 give in evidence, under the general issue, his possession thereof; and 
 if it appears in evidence that the person, body politic or corporate, 
 or those under whom they claim, have held the lands in possession for 
 twenty years before the action brought, such possession is a bar to 
 ail right or claims derived from the state under any patent issued 
 upon such warrant. (1 Maryland Code, 1860, article 57, § 9, 
 p. 397.) 
 
TBE STATUTE OF LIMITATIONS OF OHIO. 125 
 
 It has teen held by the courts of Maryland, that a right of entry 
 cannot be barred by possession alone, unless it be adverse, ex- 
 clusive and continuous, for twenty yeai-s, and any recognition or 
 acknowledgment of such, right by the party in possession will 
 prevent his possession from operating as a bat to such right until 
 twenty years after the acknowledgment has been made. {Stump 
 V. Henry, 6 Md. R. 201.) 
 
 A prevalent opinion in the neighborhood of the premises 
 claimed, in an action of ejectment, even if shown and adopted by 
 the lessor of the plaintiff, as to his legal rights, whether founded 
 in error or not, does not, at law, prevent the running of the 
 statute of limitations, nor repel the legal presumption of a grant 
 arising from adverse possession long continued and acquiesced in. 
 The general principle is well established, that possession of a part 
 of a tract or parcel of land, by him who is legally entitled to the 
 entirety, carries, with it a possession to the extent of his legal 
 rights, and no wrong-doer can, in contemplation of law, by entry 
 or the exercise of acts of ownership thereon, acquire the posses- 
 sion of any part thereof, but by actual inclosure, or ouster, actual 
 or presumptive. Upon every discontinuance of the possession of 
 a wrong-doer by operation of law, the possession of the right- 
 ful owner is restored, and nothing short of an actual adverse 
 and continuous possession for twenty years can destroy his right 
 or vest a title in the wrong-doer. {Casey's Lessee v. Inloes, 1 
 Gill's E. 430.) 
 
 Constructive possession always accompanies the right to land ; 
 and when a person claims by adverse possession only, without 
 showing any title, he must show an exclusive adverse possession- 
 bv inclosure, and his claim cannot extend bevond his inclosure. 
 {Gresap^s Lessee v. Hutson, 9 Gill's E. 277.) 
 
 When the statute once begins to run, the courts of Maryland 
 hold that it continues to run, notwithstanding any subsequent 
 disability, and where a suit terminates by abatement, and is not 
 revived, it takes no time out gf the statute of limitations, and 
 the running of the statute is not suspended by the death of the 
 party against whom it commenced to run in his life-time. {Stewart 
 V. Sellman, 5 Maryland E. 433. Young v. MaoTcall, 4 ib. 362.) 
 
 In Ohio, an action of ejectment or any other action for the 
 recovery of the title or possession of lands, tenements or heredita- 
 ments, must be brought within twenty-one years after the .cause 
 
126 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of action therefor shall have accrued, and not after. But if any 
 person entitled to bring any siich action be, at the tirne his right 
 or title first descended or accrued, within the age of twenty-one 
 years, feme covert, insane or imprisoned, every such person may, 
 after the expiration of twenty-one years from the time his right or 
 title first descended or accrued, bring such action within ten years 
 after such disability removed, and at no time thereafter. And if, 
 in any such action commenced within the time limited by the act, 
 judgment shall be arrested or reversed, or the suit abate, or the 
 plaintiff become nonsuited, and the time limited shall have expired, 
 the plaintiff may commence a new action within one year after 
 such arrest or reversal of judgment, nonsuit or abatement of 
 action, but not after. (2 Ohio Eev. Stat, 1860, ch. 87, §§ 9, 10, 23.) 
 
 There have been several important decisions of the courts of 
 Ohio, pronounced in respect to the possession which will be 
 regarded as adverse under the statute of limitations of the state, 
 but they will be more fully referred to when the subject of adverse 
 enjoyment is considered. It may be stated here, however, that 
 the courts invariably hold that the possession under which a per- 
 son claims to be protected by the statute must be actual, notorious, 
 continued, exclusive and adverse; but whether there is or is not 
 color of title, is regarded as wholly immaterial. (Lessee of Payne 
 V. Shhiner, 8 Ohio E. 159. Lessee of Ahram v. Will, 6 ib. 164.) 
 
 The courts hold that when the time begins to run against the 
 ancestor it continues to run against the heir, although the latter is 
 an infant. This is held in Ohio to be the universal rule in respect 
 to the statute of limitations, and the general rule in equity when 
 lapse of time is relied on as a bar. ( Williams v. The First Pres- 
 hyterian Church in Cincinnati, 1 Ohio State E. 4:18.) And the 
 courts further very properly hold, that municipal corporations are 
 subject to the operation of the statute of limitations in the same 
 manner and to the same extent as natural persons ; and notorious 
 and uninterrupted possession for more than twenty-one years, by 
 a private individual, under a claim of right, of land dedicated to a 
 city for streets or public squares, it is held, will bar the claim of 
 the city to its use. {Cincinnati v. Evans, 5 Ohio State E. 594. 
 Lessee of Cincinnati v. The First Presbyterian Church, 8 Ohio 
 E. 298.) 
 
 In the state of Indiana, no action for the recovery of the pos- 
 sessiop of real estate can be sustained by any person who shall not 
 
THE STATUTE OF LIMITATIONS OF INDIANA. 127 
 
 have had right of entry within twenty years next before the com- 
 mencement of the action, unless such person shall have been, 
 during such time or part thereof, absent from the United States, 
 infant, feme covert, or insane, in which case the action may be 
 brought within two years after the disability ceases ; and if the 
 person entitled to bring the action shall die before the expiration 
 of the time limited, then his representatives will have eighteen 
 months after the decease of such person, to bring such action. If 
 the plaintiff fail in the action, brought in time, for any cause 
 except negligence in the prosecution of it, or if the action abate 
 by the death of a party, or judgment be arrested or reversed, a 
 new action may be brought at any time within live years after the 
 action is thus terminated or determined. (2 Eev. Stat. 76, 77.) 
 
 It has been held, by the courts of Indiana, that color of title is 
 not necessary to constitute an adverse holding so as to bar an 
 action under their statute of limitations. The fact of possession 
 and the quo animo is commenced are held to be the tests. (Bwu- 
 man v. Orubbs, 26 Ind. E. 419. Doe v. Eerrick, 14 ib. 242.) 
 And the courts also hold that the possession by one as a tenant in 
 common, of lands for twenty years, is a bar to an action by a 
 co-tenant, who was also in possession, to recover the whole prem 
 ises. {Dumont v. Bufar, 27 Ind. R 263.) 
 
 The courts of Indiana hold, in accordance with the decisions in 
 other states, that separate successive disseisins cannot be tacked so 
 as to constitute in law one disseisin and a continuous single pos- 
 session, unless there be a privity of estate between the successive 
 parties so in possession, each coi:giing in as the assignee of his pre- 
 decessor, such as heir, grantee or devisee ; and if no such privity 
 of estate exists, the seisin of the true owner revives at the termin- 
 ation of the possession of each disseisor, and a new disseisin is 
 made by each successor. {MeEntire v. Brown, 28 Ind. R. 347.) 
 
 It is held that the statute of limitations now in force in Indiana 
 is retroactive in its operation, and bars an action to recover real 
 estate, which is not commenced within the period limited, after 
 the cause of action accrued. {MeEntire v. Brown, supra.) 
 
 The question, whether the present statute of limitations of 
 Indiana can be held to have begun to run as a bar at a period 
 anterior to its taking effect, was involved in an earlier case than 
 that of MeEntire v. Brown, and the court resolved in the affirma- 
 tive {The State v. Swope, 7 Ind. K. 91) ; although section 801 of 
 
128 LAW OF EJECTMEXfT AND ADVEBSE ENJOYMENT. 
 
 the Code seems not to have been considered on that occasion, and 
 it was, doubtless, not brought before the c&urt. That section is 
 said, by the court, in the case of McEntire v. Brown, to furnish a 
 rule of construction which is binding upon the courts, and cannot 
 be disregarded, however well satisfied they may be that in a given 
 case it would be mischievous. Its application, in its broadest 
 sense, to some provisions of the Code would probably be found to 
 work results astonishing as well as novel, and also to furnish some- 
 what convincing evidence that the rules for the construction of 
 statutes, which the common law furnishes, and which have grown 
 out of the experience and wisdom of ages, are quite as well cal- 
 culated to accomplish just ends. But the courts hold, that the 
 language of the section is itself subject to construction and limi- 
 tation ; and yet they hold, that it is clear that the legislature 
 intended, in the passage of the section, to make it retroactive in 
 its effect, which is in general quite repugnant to the policy of 
 statutes of limitation. 
 
 It has, however, been held, that, in some of the provisions of 
 the statute of limitations of the state of Indiana, the same should 
 not receive a construction as broad as its language will bear. 
 (Hutohens v. Lasley, 11 Ind. E. 456.) And it has been decided 
 that where the whole time allowed by the statute has expired 
 prior to the passage of the statute, in a case where before no 
 limitation existed, the statute is prospective, and does not bar a 
 suit until the whole time allowed by it has run. {The State v. 
 Clark, 7 Ind. E. 468.) 
 
 In Illinois the statute provides,that no person having a right of 
 entry into any lands, tenements or hereditaments, shall make any 
 entry therein, but within twenty years next after such right shall 
 have accrued, and such person shall be barred from any such entry 
 afterward, and every real, possessory, ancestral or mixed action, or 
 writ of right, brought for the recovery of any lands, tenements or 
 hereditaments, must be brought within twenty years next after the 
 right or title thereto, or cause of action accrued, and not after. 
 
 The statutes of the state further provide, that every real, posses- 
 sory, ancestral or mixed action, or writ of right brought for the 
 recovery of any lands, tenements or hereditaments, of which any 
 person maybe possessed by actual residence thereon, having a con- 
 nected title in law or equity, deducible of record, from the state 
 of Illinois or the United States, or from any public officer or other 
 
TSE STATUTE OF LIMITATIONS OF ILLINOIS. 129 
 
 person authorized by the laws of the state, to sell such land for the 
 non-payment of taxes, or from any sheriff, marshal, or other person 
 authorized to sell such land on execution, or under any order, judg- 
 ment or decree of any court of record, shall be brought within 
 seven years next after possession being taken as aforesaid ; but 
 where the possessor shall acquire such title after taking such pos- 
 session, the limitation begins to run from the time of acquiring 
 title. Possession, as described in this provision of the statute, to 
 bar the actions and suits mentioned, must have been continued in 
 the manner stated, for the term of seven years next preceding the 
 time of asserting the right of entry, or the commencement of any 
 such suit or action. 
 
 The heirs, devisees and assigns of the person having possession 
 and title in the manner mentioned will have the same benefits of 
 the statute of limitations as the person from whom the possession 
 was derived could have had by virtue of such possession. ISo 
 person who has any right of entry into 'any lands, tenements or 
 hereditaments; of which any person may be possessed by actual 
 I'esidence thereon, having a connected title in law or equity, dedu- 
 cible in the manner before mentioned, can make any entry therein, 
 except witiiin seven years from the time of such possession being 
 taken; but where the possessor shall acquire such title after 
 the time of taking such possession, the limitation will begin to run 
 from the time of acquiring title. 
 
 The statute also provides that every person in the actual posses- 
 sion of lands or tenements, under claim or color of title, made in 
 good faith, and who shall for seven successive years continue in 
 such possession, and shall also, during said time, pay all taxes 
 legally assessed on such lands or tenements, to the extent, and 
 according to the purport of his or her paper title ; and all persons 
 holding under such possession, by purchase, devise or descent, 
 before said seven years shall have expired, and who shall continue 
 such possession, and continue to pay the taxes as aforesaid, so as to 
 complete the same possession and payment of taxes for the term 
 aforesaid, are declared to be entitled to^the benefit of the statute. 
 
 And whenever a person having color of title, made in good 
 faith, to vacant and unoccupied land, shall pay all taxes legally 
 assessed thereon for seven successive years, he or she shall be 
 deemed and adjudged to be the legal owner of such vacant and 
 unoccupied land, to the extent, and according to the purport of 
 17 
 
130 LAW OF EJECTMENT AND ADVBESE ENJOYMENT. 
 
 his or her paper title ; and all persons holding under such tax payer, 
 by purchase, devise or descent, before the expiration of the seven 
 years, and who shall continue to levy the taxes as aforesaid, so as 
 to complete the payment of the taxes for the term, shall be entitled 
 to the benefit of the provision of the statute, provided, however, 
 that if any person having a better paper title to such vacant and 
 unoccupied land shall, during the said term of seven years, pay 
 the taxes assessed on said land, for any one or more years of the 
 said term of seven years, then, and in that case, such tax payer, his 
 heirs and assigns, shall not have the benefit of the statute. The 
 provisions of the statute stated in this paragraph are declared not 
 to extend to lands or tenements owned by the United States, or 
 the state of Illinois nor to school or seminary lands, nor to lands 
 held for the use of religious societies, nor to lands held for any 
 public purpose, nor to lands or tenements where there shall be 
 an adverse title, and the holder of such adverse title is under the 
 age of twenty-one years, insane, imprisoned, feme covert, out of 
 the limits of the United States, and in the employment of the 
 United States, or of the state of Illinois ; provided such person 
 shall commence an action to recover such lands or tenements, 
 -within three years after the several disabilities cease to exist, and 
 shall prosecute such action to judgment ; or, in case of vacant and 
 unoccupied land, shall, within said three years, pay to the person 
 or persons who have paid the same, all the taxes, with interest 
 thereon, at the rate of twelve per cent per annum, that have been 
 paid on said vacant and unimproved land., (2 Compiled Stat. 
 
 1858, pp. 749, 750.) 
 
 The term " action accrued," as used in the statute of limita- 
 tions, is declared to mean that all actions to which said term re- 
 lates shall be considered, deemed and taken, to have accrued 
 from and after the time when such actions might have been com- 
 menced upon any cause or causes of action specified. (Laws of 
 
 1859, p. 125.) It has been held that a party who interposes the 
 benefit of the seven year limitation, derived under the statute, to 
 bar an action of ejectment, must show that the party paying the 
 taxes at the time had the color of title. Payment of taxes by 
 different persons, for seven years, one of whom had only a con- 
 tract for a conveyance, is held to be insuflicient. {Dunlap v. 
 Dougherty, 20 111. E. 397. Bawley v. Van Court, 21 ib. 462. 
 Bride v. Watt, 23 ib, 507.) And it was held in the case of Bride 
 
TBE STATUTE OF LIMITATIONS OF ILLINOIS. 131 
 
 V. Watt, that the instrument relied on as color of title mTist pur- 
 port on its face to convey title to the grantee ; and further, that the 
 payment of taxes and the color of title must concur for the period 
 of seven full consecutive years. The courts also Jiold in respect to 
 this seven year limitation, that to claim the benefit of the act, a 
 party must 'pay all the taxes legally assessed upon the land era- 
 braced in his paper title, and covered by his possession. {Leflin 
 V. Herrington, 16 111. R. 301.) The deed of the auditor of the 
 state, given on sale of lands forfeited for non-payment of taxes, is 
 held to be good color of title under the limitation act. ( Wood- 
 ward V. Blanchard, 16 111. R. 425. And an administrator is 
 decided to be within the description of persons from whom a 
 title may be deduced of record, so as to authorize a party holding 
 under it, by seven years actual possession, to make out a bar under 
 tlie seven year limitation act. {Collins v. Smith, 18 111. R. 160.) 
 The actual possession by a purchaser from the mortgagor, under 
 paper title, and payment of taxes for seven successive years, are 
 held to bar the mortgagee from relief against the lands so held 
 under the mortgagor. {Manning v. Warren, 17 111. R. 267.) The 
 statute of seven years' limitation, it is held, does not require that 
 the possession, under claim and color of title, should be continued 
 in one person, nor that the same person shall pay all the taxes for 
 that period ; nor that the taxes shall be paid during the year for 
 which they accrued ; nor that the person in possession for a portion 
 or the whole of a particular year should pay the taxes of such 
 year. It is held to be sufficient if the taxes are paid under claim 
 and color of title by those having or succeeding to the possession. 
 The taxes of any year may be paid at any time before sale. 
 {Gofield V. Furry, 19 111. R. 183. Fell v. Cessford, 26 ib. 522. 
 Hinchman, v. Whetstone, 23 ib. 185.) And if taxes are paid by a 
 tenant, it is held that the payment inures to the benefit of the land- 
 lord ; or if by a trustee or a cestui que trust, to the benefit of the 
 combined legal and equitable estate claimed. {Gofield v. Furry, 
 supra. Darst v. Marshall, 20 111. R. 227.) The owner of the 
 land may defeat the right of the holder of the " claim and color 
 of title," by the payment of taxes at any time before the period 
 of limitation has arrived ; or by making entry and taking actual 
 possession of the land at any time before the adverse claimant 
 becomes its occupant ; or by a recovery in ejectment before the 
 statutory bar has attached and occupancy is had by the holder of 
 
132 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the color of title. {Steams v. Gittings, 23 111. E. 388.) But when 
 a party has entered into possession of land under color of title 
 acquired in good faith, and continued to reside thereon for seven 
 successive years, paying all the taxes assessed thereon during that 
 time, the courts hold that the remedy of the party to whom such 
 possession was adverse, not only becomes barred, but his title is 
 transferred to the party asserting the bar when the remedy ceases. 
 {Jacobs v. Bice, 33 111. E. 369.) And when under claim and color 
 of title all the taxes legally assessed are paid for the full period of 
 limitation, a bar is held to be created to the redemption of any 
 portion of the property. {Chickering v. Failes, 38 111. E. 342.) 
 It is still held, nevertheless, that color of title and payment of 
 taxes must concur to be availing under the Illinois statute of limi- 
 tations. {Shacldcford v. Bailey, 35 111. E. 387.) 
 
 In the state of Michigan, the statute of limitations now in force 
 provides that no person shall bring or maintain any action for the 
 recovery of any lands or the possession tJiereof, or make any entry 
 thereupon, unless such action is commenced or entry made Avithin 
 the time limited therefor, after the right to make such entry or to 
 bring such action shall have first accrued to the plaintiff, or to 
 some person through whom he claims, to wit : 
 
 1. Within five years, when the defendant claims title to the 
 land in question by or through some deed made upon a sale 
 thereof by an executor, administrator or guardian, or by a sheriff 
 or other proper ministerial ofiieer, under the order, judgment, 
 decree or process of a court, or legal tribunal of competent juris- 
 diction within the state. 
 
 2. "Within ten years, when the defendant claims title under a 
 deed made by some officer of the state or of the United States, 
 authorized to make deeds upon tlie sale of lands for taxes assessed 
 and levied within the state. 
 
 3. -Within fifteen years in all other cases. 
 
 If such right or title first accrued to an ancestor, predecessor or 
 grantor of the person who brings the action or makes the entry, 
 or to any other person from or under whom he claims, the periods 
 of limitation must be computed from the time when the right or 
 title so first accrued to said ancestor, predecessor, grantor or other 
 person. (Laws of 1863, No. 227, §§ 1, 2.) 
 
 Whenever any person shall be disseised, his right of eiftry or 
 action is deemed to have accrued at the time of such disseisin. 
 
TBE STATUTE OF LIMITATIONS OF MICHIGAN. 133 
 
 "When he claims as heir or devisee of one who died seised, his 
 right is deemed to have accrued at the time of such death, unless 
 there is a tenancy by curtesy, or other estate intervening after 
 the death of such ancestor or devisor, in which case his right is 
 deemed to accrue when such intermediate estate expires, or when 
 it would have expired by its own limitation. When there is such 
 an intermediate estate, and in all other cases when the party 
 claims by force of any remainder or reversion, his right, so far as 
 it is affected by the limitation prescribed, is deemed to accrue when 
 the intermediate or precedent estate would have expired by its own 
 limitation, notwithstanding any forfeiture thereof, for which he 
 might have entered at any earlier time. And no person is pre- 
 vented from entering when entitled to do so by reason of any for- 
 feiture or breach of condition, but, if he claims under such a title, 
 his right is deemed to have accrued when the forfeiture was 
 incurred or the condition was broken. In all cases not otherwise 
 provided for, the right is deemed to have accrued when the claim- 
 ant, or the person under whom he claims, first became entitled to 
 the possession of the premises under the title upon which the entry 
 or action is founded. (2 Comp. Laws, 1857, tit. 33, ch. 164, § 5,352.) 
 The statute further declares, that in every action for the recovery 
 of real estate, or the possession thereof, the person establishing the 
 legal title to the premises shall be presumed to have been possessed 
 thereof within the time limited by law for bringing such action, 
 unless it shall appear that the same have been possessed adversely 
 to such legal title by the defendant, or by those from or under 
 whom he claims. And it is further provided by the statute, that 
 if at the time when any right of entry, or of action before speci- 
 fied, shall first accrue or have accrued, the person entitled to such 
 entry or action shall be or shall have been within the age of 
 twentj'-one years, or a married woman, insane, or imprisoned, or 
 absent from the United States, unless within one of the British 
 Provinces of North America, such person, or any one claiming 
 from, by, or under him, may make such entry, or bring such action, 
 at any time within five years after such disability shall be or shall 
 have been removed, although the time limited therefor may have 
 expired. And if the person first entitled to make such entry, or 
 bring such action, shall die, or shall have died during the continu- 
 ance of any of the disabilities mentioned, and no determination or 
 judgment shall have been had of or upon the title, right or action 
 
134 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 which accrued to him, the entry may be made or action brought 
 by his heirs, or any one claiming under him, at any time within 
 five years after his death, although the time limited therefor may 
 have expired. (Laws of 1863, No. 227, §§ 4, 5, 6.) But if, at the 
 time when such right of entry or of action shall first accrue, the 
 person entitled thereto shall be under any of the disabilities men- 
 tioned, and shall die without having recovered the premises, no 
 further time for making such entry or bringing such action, beyond 
 that prescribed and above stated, will be allowed by reason of the 
 disability of any other person. 
 
 No person is deemed to have been in possession of any lands, 
 within the meaning of the Michigan statute of limitations, merely 
 by reason of having made an entry thereon, unless he shall have 
 continued in open and peaceable possession of the premises for at 
 least one year next after such entry, or unless an action shall be 
 commenced upon such entry and seisin within one year after he 
 shall be ousted or dispossessed of the premises. If any action, of 
 which the commencement is limited by the statute, shall be abated 
 by the death of any party thereto, or if, after verdict for the 
 demandant or plaintifi", the judgment shall be ari-ested, or if judg- 
 ment in any such action be given for the demandant or plaintifi", 
 and the judgment shall be reversed for error therein, the demand- 
 ant or plaintifi^, or any person claiming from, by, or under him, 
 may bring an action for the same cause, at any time within one 
 year after the determination of the original action, or after the 
 reversal of the judgment. No suit for the recovery of any lands 
 can be commenced by or in behalf of the people of the state, 
 unless within twenty years after the right or title of the people of 
 the state therein first accrued, or within twenty years after the 
 said people or those from or through whom they claim shall have 
 received the rents and profits of the satne, or some part thereof. 
 (2 Oomp. Laws, 1857, tit. 33, ch. 164, §§ 5,356, 5,357, 5,359, 5,360.) 
 
 In Wisconsin, no action for the recovery of any lands, tene- 
 ments or hereditaments, or for the recovery of the possession 
 thereof, can be maintained, unless it appear that the plaintifi', his 
 ancestor, predecessor or grantor, was seised or possessed of the 
 premises in question within twenty years before the commence- 
 ment of the action ; and no avowry or cognizance of title to real 
 estate, or to any rents or services, is valid, unless it appear that 
 the person making the avowry, or the person in whose right the 
 
THE STATUTE OF LIMITATIONS OF WISCONSIN. 135 
 
 cognizance is made, or the ancestor, predecessor, or grantor of 
 such person, were seised or possessed of the premises in question 
 within twenty years before the committing the act in defense of 
 ■which such avowry or cognizance is made. These, and all other 
 limitations respecting real property by the statutes of Wisconsin, 
 seem to be almost exactly identical with the statutes of New York, 
 from which they were probably copied, except that by the "Wiscon- 
 sin statute, a continued occupation of land, under a claim founded 
 on a written instrument or judgment, for ten years, is deemed 
 adverse, and constitutes a bar, whereas, by the New York statute, 
 the limitation is twenty years; and in "Wisconsin, the limitation, 
 ■when the relation of landlord and tenant exists, is ten years, in 
 lieu of twenty years, as by the New York statute. And again, in 
 "Wisconsin there does not seem to be any limitation of action by 
 the state, whereas, in New York, the limitation in such cases is 
 forty years. In "Wisconsin, as in New York, the right of any 
 person to the possession of any real estate is not impaired or 
 affected by a descent being cast in consequence of the death of 
 any person in possession of such estate. ("Wis. K. S. 1858, ch. 
 138, §§ 1-14, p. 819.) 
 
 As the statute of limitations relating to real property in "Wis- 
 consin is so similar to that of New York, the decisions under the 
 New York statute are quite applicable to the former state ; and 
 the laws of New York hereinbefore given ma/ be referred to for 
 the provisions of the "Wisconsin statute not hero given; 
 
 By the statutes of "Wisconsin, any suit or proceeding for the 
 recovery of lands sold for taxes, except in cases ■where the taxes 
 have been paid or the lands redeemed as provided by law, must 
 be commenced -within three years from the time of recording the 
 tax deed of sale, and not thereafter. 
 
 The courts have held that this statute limiting the time for com- 
 mencing actions for the recovery of lands sold and conveyed for 
 the non-payment of taxes, is constitutional; and that it creates a 
 complete bar to any action for that purpose, except in the cases 
 specified therein, commenced after the expiration of three years 
 from the recording of the tax deed, whether such action is brought 
 by the claimant under such deed, or by the original owner of such 
 lands or those claiming under him. {Falkner v. Dorman, 7 "Wis. 
 E. 388.) The limitation of the statute operates in favor of the 
 grantee in the tax deed, if the premises -were unoccupied ■when 
 
136 LAW OF EJECTilENT AND ADVERSE ENJOYMENT. 
 
 Rucli deed was recorded, but in favor of the former owner if he 
 was in actual possession of the premises at that time. Possibly 
 the grantee under the tax deed might be precluded from taking 
 advantage of the protection aiforded by the statute, if by profes- 
 sions of submission to the title of the adverse claimant he should 
 induce him to delay the prosecutiou of a suit, or by fraud or 
 stratagem should lull him into inactivity, or throw him oif his 
 guard. {Knox v. Cleveland, 13 "Wis. E. 245. Jones v. CoUins, 
 16. ib. 594.) 
 
 Under the statute, the formal execution and record of a tax deed 
 of unoccupied premises draw after it the possession, and makes it 
 incumbent on the previous owner, if he desire to contest its 
 validity, to commence his action or take actual adverse possession 
 within the period of limitation prescribed, else his right is gone. 
 {Dean v. Earley, 15 "Wis. E. 100. Whitney v. Marshall, 17 
 ib. 174.) 
 
 "When the lauds of minors are sold for taxes, the rights of the 
 minors will be barred in respect to such lands, unless they redeem 
 them before they become of age or within one year thereafter. 
 ( Woodbury v. Shackleford, 19 "Wis. R. 55. Wright v. Wing, 18 
 ib. 45.) 
 
 In Minnesota, no action for the recovery of real property, or for 
 the recovery of the possession thereof, can be maintained, unless it 
 appear that the plaintiff, his ancestor, predecessor or grantor, was 
 seised or possessed of the premises in question, within twenty 
 years before the commencement of the suit. (Gen. Stat. 1858, ch. 
 60, §4.) 
 
 But if a person entitled to bring such action be, at the time the 
 cause of action accrued, either within the age of twenty-one 
 years, or insane, or imprisoned on a criminal charge, .or in execu- 
 tion under the sentence of a criminal court,. for a time less than his 
 natural life, or a married woman, the time of such disability is not 
 a part of the time limited for the commencement of the action, 
 except that the period within which the action must be brought can- 
 not be extended more than five years by any such disability, except 
 infancy, nor can it be extended in any case longer than one year 
 after the disability ceases. (Gen. Stat. ch. 60, § 17.) 
 
 Any suit or proceeding for the recovery of lands sold for taxes, 
 except in cases where the taxes have been paid, or the land 
 redeemed, as provided by law, must be commenced within three 
 
TiTE STATUTE OF LIMITATIONS OF IOWA. 137 
 
 years from the time of recording the tax deed of sale, and not 
 thereafter. (Gen. Stat. ch. 9, § 105.) It will be observed that this 
 last provision of the statute of Minnesota is, in terms, the same as 
 the statute of "Wisconsin upon the same subject ; and consequently 
 the decisions of the courts in Wisconsin, under their statute, may 
 be applicable in Minnesota. As the state of Minnesota has been 
 established less than twenty years, probably the courts have not 
 yet been called upon to construe the statute limiting the time in 
 which to prosecute a real action. The courts of the state;, how- 
 ever, have held, that when a statute of limitations has once com- 
 menced to run against a cause of action, any change or amend- 
 ment of the law, as to the time limited, necessarily applies to such 
 cause of action, subject to the restriction against impairing the 
 obligation of contracts, and to the right to a reasonable time after 
 the passage of the act for the commencement of actions on such 
 demands. {Hohombe v. Tracy, 2 Minn. E. 241.) 
 
 In the state of Iowa, all actions for the recovery of real prop- 
 erty must be commenced within ten years after the cause of 
 action accrues, or the same are barred. But this limitation does 
 not apply to minors, so far as to prevent them from having at 
 least one year after attaining their majority within which to com- 
 mence their action. And if the person entitled to a cause of 
 action dies within one year next previous to the expiration of the 
 limitation provided, the limitation does not apply until one year 
 after such death. 
 
 ' If, after the commencement of the action, the plaintiff fail 
 therein for any cause except negligence in its prosecution, and a 
 new suit be brought within six months thereafter, the second suit, 
 for the purposes contemplated in the statute of limitations, is 
 deemed a continuance of the first. (Eev. Laws, 1860, §§ 2,740- 
 2,750.) 
 
 The former statute of limitations of Iowa made the time in 
 which a real action could be commenced, twenty years, but in 
 1851 it was reduced to ten years. And when an adverse possession 
 commenced in 1848, prior to the Code of 1851, and an action of 
 right to recover the possession was commenced in 1859, the court 
 held that it was too late ; and it was further held that the right of 
 action accrues to the plaintiff, or those under whom he claims at 
 the time of the entry and ouster, and not from the date of his 
 deed, or when he obtained title; and hence, that the statute' ol 
 18 
 
138 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 limitations begins to run from the ouster, or commencement of 
 tlie adverse possession. {Hohinson v. Zaice, 14 Iowa R. 421.) 
 
 When adjoining owners of real estate were at a loss to show 
 where the dividing line was, which was, however, finally agreed 
 upon, and a fence erected thereon, at the mutual cost of both 
 parties, followed by actual possession and claim of ownersliip, 
 which was acquiesced in for more than ten years, it was held that 
 these facts should be regarded as establishing the defense of the 
 statute of limitations, although it appeared that the division line 
 was erroneous, and that the possession and claiming of ownership 
 was the result of this mistake ; and it was declared that one of the 
 objects of the statute of limitations is to compose controversies 
 growing out of mistakes and errors which tend to keep open in- 
 definitely the settlement of titles, and render them insecure and 
 uncertain. {BurdicJc v. Heivly, 23 Iowa E. 511.) 
 
 By the statute of limitations of Missouri, no action for the 
 recovery of the possession of any lands, tenements or heredita- 
 ments, or for the recovery of the possession thereof, can be main- 
 tained, unless it appear that the plaintiff, his ancestor, predecessor 
 or grantee, was seised or possessed of the premises in question 
 within ten years before the commencement of the action ; and 
 no entry upon lands, tenements or hereditaments is deemed snfB- 
 cient or valid as a claim, unless an action be commenced there- 
 upon within one year after the making of such entry, and within 
 ten years from the time when the right to make such entry 
 descended or accrued. 
 
 The right of any person to the possession of any lands, tene- 
 ments or hereditaments is not impaired or affected by a descent 
 cast in consequence of the death of any person in possession of such 
 estate. 
 
 If any person entitled to bring any such action, or to make any 
 entry, be, at the time the title shall first descend or accrue, within 
 the age of twenty-one years, insane, imprisoned on any criminal 
 charge, or in execution upon some conviction of a criminal offense 
 for any term less than life, or a married woman, he or she may 
 bring his or her action at any time within three years after the 
 disability ceases, except that no such action can be commenced or 
 entry made by any person under such disability, after the expira- 
 tion of twenty-four years after the cause of action or right of entry 
 accrued. If any person entitled to commence such action or make 
 
THE STATUTE OF LIMITATIONS OF KANSAS. 139 
 
 such entry, die during the continuance of any disability specified, 
 and no determination or judgment be had of the title, right or 
 action to him accrued, his heii's may commence such action, or 
 malie such entry, at any time within three years after his death, 
 but not after that period. 
 
 The act declares that the possession of a part of a tract of land 
 in the name of the whole, accompanied by the several acts of own- 
 ership over the whole, shall be deemed a possession of the whole. 
 (2 Mo. Gen. Stat. 1866, ch. 191.> 
 
 In the state of Kansas, an action for the recovery of real prop- 
 erty sold on execution, brought by the execution debtor, his heirs, 
 or any person claiming under him, by title acquired after the date 
 of the judgment, must be brought within five years after the date 
 of the recording of the deed made in pursuance of the sale. An 
 action for the recovery of real property sold by executors, adminis- 
 trators or guardians, upon an order or judgment of a court direct- 
 ing such sale, brought by the heirs or devisees of the deceased 
 person, or the ward or his guardian, or any person claiming under 
 any or either of them, by title acquired after the date of the judg- 
 ment or order, must be brought within five years after the date of 
 the recording of the deed made in pursuance of the sale. An 
 action for the recovery of real property sold for taxes must be 
 brought within two years after the date of the recording of the 
 tax deed. And an action for the recovery of real property in all 
 other cases must be brought within fifteen years after the cause of 
 action accrued, and at no time thereafter ; provided, however, that 
 if, when the cause of action accrues against a person, he be out of 
 the state, or has absconded or concealed himself, the period limited 
 for the commencement of the action shall not begin to run until 
 he comes into the state, or while he is absconded or concealed ; 
 and if, after the cause of action accrues, he depart from the state, 
 or abscond or conceal himself, the time of his absence or conceal- 
 ment is not to be computed as any part of the period within which 
 the action must be brought. (Kev. Stat. 1868, ch. 80, §§ 16, 19.) 
 
 Any suit or proceeding against the tax purchaser, his heirs or 
 assigns, for the recovery of lands sold ■ for taxes, or to defeat or 
 avoid a sale or conveyance of lands for taxes, except in cases where 
 the taxes have been paid or the land redeemed, as provided by law, 
 must be commenced within two years from the time of recording 
 the tax deed of sale^ and not thereafter. (Eev. Stat. ch. 107, § 116.) 
 
140 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The supreme court of the state of Kansas hold, that a foreign 
 corporation is a " person " within the meaning of a section of 
 the code of the state, which may perhaps be one for holding that 
 tliere is no limit for the action to recover real property claimed by 
 a foreign corporation. {The North Missouri Railroad Corrvpany 
 V. Akers, 4 Kansas E. 453.) 
 
 In the state of l^ebraska, the statute provides that an action 
 for the recovery of the title or possession of lands, tenements or 
 hereditaments, can only be brought within twenty-one years after 
 the cause of action shall have accrued ; but if the persan entitled 
 to bring the action be, at the time the cause of action accrues, an 
 infant, married woman, insane or imprisoned, such person may 
 bring such action at any time within ten years after such disability 
 ceases, though the twenty-one years' limit may have actually 
 expired, but not afterward. (E. S. 1866, part 2, tit. 2, §§ 6, 7.) 
 
 In Nevada, the statute of limitations declares, that the state of 
 Nevada will not sue any person for, or in respect to, any real prop- 
 erty, or the issues or profits thereof, by reason of the right or title 
 of the state, unless such right or title shall have accrued within 
 ten years before any action or other proceeding for the same, or 
 unless the state, or those from whom it claims, shall have received 
 the rents and profits of such real property, or of some part thereof, 
 within the space of ten years. 
 
 Tiie statute provides, that no action for the recovery of mining 
 claims, or for the recovery of the possession thereof, shall be main- 
 tained, unless it appear that the plaintiff, or those through or from 
 whom, he claims, were seised or possessed of such mining claim, or 
 were the owners thereof according to the laws and customs of the 
 district embracing the same, within two years before the com- 
 mencement of such action. Occupation and adverse possession 
 of a mining claim are declared to consist in holding and working 
 the same in the usual and customary mode of holding and working 
 similar claims in the vicinity thereof. 
 
 The statute further provides, that no cause of action, or defense 
 to an action, founded upon the title to real property, or to fonts 
 or services out of the same, shall be effectual, unless it appear that 
 the person prosecuting the action, or making the defense, or under 
 whose title the action is prosecTited, or the defense is made, or the 
 ancestor, predecessor or grantor of such person, was seised or pos- 
 sesse'd of the premises in question within five years before the 
 
THE STATUTE OF LIMITATIONS OF NEVADA. 141 
 
 committing of the act in respect to which said action is prosecuted 
 or defense made. And no peaceable entry upon any real estate 
 will be deemed sufBcient and valid as a claim, unless an action be 
 commenced by the plaintiif for possession within one year from 
 the making of such entry, or within five years from the time M'hen 
 the right to bring such action accrued. 
 
 In every action for the recovery of real propetty, or the posses- 
 sion thereof, the person establishing a legal title to the premises 
 will be presumed to have been possessed, within the time prescribed 
 by law ; and the occupation of such premises by any other person 
 will be deemed to have been under, and in subordination to, the 
 legal title, unless it appear that such premises have been held and 
 possessed adversely to such legal title for five years before the 
 commencement of such action ; and whenever it shall appear that 
 the occupant, or those under whom he claims, entered into the 
 possession of premises, under claim of title, exclusive of any other 
 right, founding such claim upon a written instrument, as being a 
 conveyance of the premises in question, or upon the decree or 
 judgment of a competent court, and that there has been a con- 
 tinued occupation and possession of the premises included in such 
 instrument, decree or judgment, or of some part of such premises, 
 under such claim, for five years, the premises so included will be 
 deemed to have been held adversely, except that when the premises 
 so included consist of a tract divided into lots, the possession of one 
 lot will not be deemed a possession of any other lot of the same 
 tract. For the purpose of constituting an adverse possession by 
 any person claiming a title founded upon a written instrument, or 
 judgment, or decree, land will be deemed to have been possessed 
 and occupied in the following cases : first, where it has been 
 usually cultivated and improved ; second, where it has been pro- 
 tected by a substantial inclosure ; third, where (although not 
 inclosed) it has been used for the supply of fuel, or for fencing 
 timber for the purposes of husbandry, or for the use of pasturage, 
 or for the ordinary use of the occupant ; and fourth, when a known 
 lot, or single farm, not exceeding three hundred and twenty acres 
 in extent, has been partly improved, the portion of such farm or 
 lot that may have been left not cleared, or not inclosed according 
 to the usual course and custom of the adjoining country, will be 
 deemed to have been occupied for the same length of time as the 
 part improved and cultivated. 
 
142 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 When it shall ajjpear that there has been an actual continued 
 occupation of premises under a claim of title, exclusive of any 
 other right, but not founded upon a written instrument or a judg- 
 ment or decree, the premises so actually occupied, and no other, 
 will be deemed to have been held adversely ; and for the purpose 
 of constituting an adverse possession, by a person claiming title, 
 not founded upon a written instrument, judgment or decree, land 
 will he deemed to have been possessed and occupied in the follow- 
 ing cases only ; first, where it has been protected by a substantial 
 inclosure; and second, where it has been usually cultivated or 
 improved. 
 
 Whenever the relation of landlord and tenant shall have existed 
 between any persons, the possession of the tenant will be deemed 
 the possession of the landlord, until the expiration of five years 
 from the expiration of the tenancy, or when there has been no 
 written lease, until the expiration of five years from the time of 
 the last payment of rent, notwithstanding that such tenant may 
 have acquired another title, or may have claimed to hold adversely 
 to his landlord. But such presumptions will not be made after 
 the periods limited. The right of a person to the possession of 
 any real property will not be impaired or afi^cted by a descent 
 being cast in consequence of the death of a person in possession 
 of such property. 
 
 If a person entitled to commence any action for the recovery of 
 real property, or to make entry or defense, founded on the title 
 to real property, or to rents or services out of the same, be, at the 
 time such title shall first descend or accrue, either within the age 
 of twenty-one years, insane, imprisoned on a criminal charge, or 
 in execution upon conviction of a criminal offense, for a term less 
 than for life, or a married woman, the time during which such 
 disability shall continue will not be deemed any portion of the 
 time limited for the commencement of such action or the making 
 of such entry or defense ; but such action may be commenced, or 
 entry or defense made, within the period of five years after such 
 disability shall cease, or after the death of the person entitled 
 who shall die under such disability ; but such action cannot be 
 commenced, or entry or defense made after that period; and if 
 when the cause of action shall accrue against a person, he be out 
 of the state, the action may be commenced within the time limited 
 after his return to the state ; and if after the cause of action shall 
 
THE STATUTE OF LIMITATIONS OF CALIFORNIA. 143 
 
 have accrued he depart the state, the time of his absence will not 
 be part of the time prescribed for the commencement of the action. 
 (Laws of 18C1, ch. 12, §§ 3-15 and § 21 as amended by the Laws 
 of 1867, ch. 49.) 
 
 It -will be observed that the statute of Nevada, in respect to 
 ■what shall constitute an adverse possession, is similar to that of 
 the state of ISTew York ; so that the decisions of the courts under 
 the New York statiTte may apply to the statute of Nevada. 
 
 In the state of Oregon, an action for the recovery of real jjrop- 
 erty, or for the possession thereof, must be commenced within 
 twenty years after the claimant, his ancestor, predecessor or 
 grantor was seised or possessed of the premises. But if the per- 
 son entitled to the action be an infant, or a married woman, or is 
 insane, imprisoned on a criminal charge, or in execution under 
 sentence as a criminal, for a term less than his natural life, the 
 time during which the disability exists is not reckoned in the time 
 limited'. (Gen. Stat. 1864, tit. 2, ch. 1, § 4.) 
 
 In California, the people of the state will not bar any person for 
 or in respect to any real property, or the issues or profits thereof, 
 by reason of the right or title of the people to the same, unless 
 such right or title shall have accrued within ten years before any 
 action or other pi'oceeding for the same shall be commenced, or 
 unless the people, or those from whom they claim, shall have 
 received the rents or profits of such real property, or of some part 
 thereof, within the space of ten years ; and no action for the 
 recovery of real property, or for the recovery of the possession 
 thereof, can be maintained, unless it appears that the plaintiff, his 
 ancestor, predecessor or grantor was seised or possessed of the 
 premises in question within five years before the commencement 
 of the action. All of the other provisions of the statute of limita- 
 tions of California, in respect to such property, are similar to the 
 statute of New York, from which it seems to have been copied, 
 except that the term of limitation is five years ; and it will not be in- 
 convenient, perhaps, to refer to the New York statute, as hereinbefore 
 given, for the provisions of the statute of California. There is an 
 additional provision in the California statute, however, permitting 
 a party who claims real estate, or the possession thereof, under a 
 title from the Spanish or Mexican government, or the authorities 
 thereof, to maintain an action therefor, provided the same is com- 
 menced within five years from the time such title may have been 
 
144 LAW OF EJECTMENT ANP AVVERSE ENJOYMENT. 
 
 confirmed by the United States, or the legal authorities thereof. 
 (Wood's Dig. of Cal. Laws, 1860, pp. 45, 46, 47.) 
 
 Adverse possession of lands, whicli will set the statute of limita- 
 tions in motion, is held to be of two kinds : first, when possession 
 is taken without color of title, but with intent to claim the fee 
 against all comers ; and, second, where possession is taken under a 
 claim of title founded on a written instrument, or a judgment of 
 competent jurisdiction. And when the defendant is in the ad- 
 verse possession of land as a trespasser, without color of title, he 
 is held not to be in a position, before the statute of limitations has 
 run, to contest the title of the true owner, in such a sense as to 
 defeat a former action brought hj the true owner, to recover wood 
 cut by him on the land. {Kimball v. Lohmas, 31 Cal. E. 154.) 
 
 " Title to land is the means whereby the owner of lands has 
 the just possession of his property." A party, under the statute 
 of limitations, may acquire an absolute right of possession in lands, 
 as against all tlie world ; such a right as, wlien ousted, will return 
 him to, and effectually protect him in, his just possession thereof, 
 even against one having the written title. An adverse possession, 
 therefore, confers a substantial title, and it is such a title as entitles 
 the holder to all the remedies to quiet his possession, that are in- 
 cident to possessions under written titles. And a party who has 
 been in the exclusive adverse possession of lands for a period of time, 
 wliich, under the statute of limitations, vests him with a title 
 thereto, may maintain an action against a party claiming under a 
 record title, to have said adverse claim determined and adjudged 
 null and void, as against him. {Arri/iigton v. Lisoom, 34 Cal. 
 E. 365.) 
 
 If the grantor in a deed takes adverse possession of the land 
 granted subsequent to his deed, and holds continuous and adverse 
 possession for five years, the courts hold that he may set up the 
 statute of limitations as a defense in an action of ejectment brought 
 against him by his grantee. {Fraiiklin v. Borland, 28 Cal. E. 
 175.) 
 
 When E. had been in possession of land more than five years, 
 under a claim of title, while L. and H., and their grantors, during 
 'all the time had a perfect title to the land; and they sued C. and 
 others, to recover possessioTi of it, but did not make E. a party, 
 and recovered judgment, and after five years had run, the sheriff 
 turned E. out of possession, under a writ of restitution issued 
 
TSE STATUTE OF LIMITATIONS OF VIRGINIA. 145 
 
 on the judgment, and placed L. and H. in possession ; the court 
 held that the title of E., thus acquired by five years' adverse pos- 
 session, was not impaired by this entry of L. and H. {Le Roy v. 
 Rogers, 30 Cal. E. 229.) 
 
 The statute of limitations does not commence to run with re- 
 gard to laud held under a Mexican or Spanish grant, until a 
 patent for the same has been issued by the government of the 
 United States. But in an action to recover lands where the 
 plaintiiF claims title to the demanded premises, derived from a 
 Spanish or Mexican grant, and the defendant has been in five 
 years' adverse possession under a claim of title, he may rest with 
 proof of his five years' adverse possession, and the burden is cast 
 upon the plaintiff of proving that less than five years have expired 
 since the final confirmation of the grant, in order to defeat the 
 defense of the statute of limitations. {Richardson v. Williamson, 
 24 Cal. E. 289. Reed v. Spioer, 27 ib. 587. Johnson v. Van Dyke, 
 20 ib. 226.) 
 
 An action may be brought and maintained to recover possession 
 of land within the pueblo of San Francisco, by one holding title 
 derived from the pueblo, at any time within five years after the 
 issuance of a patent for the pueblo lands, by the United States. 
 {Davis V. Davis, 26 Cal. E. 23.) 
 
 CHAPTEE YIII. 
 
 THE STATTTTE OF LIMrTATIONS AS A BAE TO THE ACTION OF EJECTMENT 
 
 THE LAWS OF THE SOUTHERN AND SOUTH-WESTEKN STATES. 
 
 In the state of Virginia, no action for ..the recovery of lands, 
 tenements or hereditaments, can be maintained, except the same 
 be commenced within fifteen years next after the title or cause of 
 action accrued ; and no person or persons who may have any right 
 or title of entry into any lands, tenements or hereditaments, can 
 make any entry but within fifteen years next after such right or 
 title accrued, and such person will be barred from any entry after- 
 ward ; and no continual or other claim upon or near any land, 
 will preserve any right of making an entrj' or of bringing an 
 action. But if any person entitled to bring such action or make 
 19 
 
146 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 such entry be under the age of twenty-one years, feme covert, or 
 insane, at the time such right or title accrued, every such person, 
 or the person claiming through him, may bring and maintain such 
 action or make such entry within ten years next after such dis- 
 abilities removed, or the death of the person so disabled, and not 
 afterward ; provided, however, that the time of limitation can in 
 no case be extended beyond thirty years after the right accrued. 
 
 It is further provided, that, if the action abate or judgment be 
 given for the plaintiff, and is afterward reversed or arrested, upon 
 a ground which does not preclude a new action for the same cause, 
 a new action or suit may be brought within one year next after 
 such determination of such suit. (Va. Code, 1860, tit. 45, ch. 149, 
 §§ 1-4, 18.) 
 
 It seems that the maxim nullum tempus accurrit regi, is recog- 
 nized in Virginia, and it is therefore held that the statute of 
 limitations does not run against the commonwealth. ( Vide Kemp 
 V. Commonwealth, 1 Hen. & Munf. R. 85. Nimmo''s Executors v. 
 Commonwealth, 4 ib. 57. Levasser v. Washburn, 11 Grattan's E. 
 672.) The statute of limitations will not bar a claim when the 
 possession of the defendant was fiduciary j but in such case, how- 
 ever, such possession must have been fiduciary as to the plaintiff 
 or those under lohorn he claims ; its being fiduciary as to any other 
 person is not sufficient. {Spotswood v. Dandridge, 4 Hen. & Munf. 
 K. 139.) A trustee cannot take advantage of the act of limit- 
 ation against the claim of the cestui que trust or of persons claim- 
 ing under him. {Redwood v. Riddeck, 4 Munf. E. 222.) 
 
 The courts of Virginia hold to the general rule under their 
 statute of limitations, that possession, to give title, milst be 
 adversary; and when the defendant has entered under the plaintiff 
 and acknowledged his title as that under which he holds, it is 
 decided that he cannot controvert it. Thus the lessee is not per- 
 mitted to dispute the title of the landjiord. Having entered under 
 and holding in subserviency to it, it is that which maintains and 
 justifies his possession, and he impeaches his own title by assailing 
 it. When it is sought to make out a title of adverse possession, 
 the Virginia courts hpld that the possession, as a general rule, 
 should be adverse in its inception. "When the original possession 
 was taken in subordination to the title of anotlier, it has been 
 decided that the tenant could not, by his own act, change the 
 character of his possession. It has, however, been held, that a 
 
TSE STATUTE OF LIMITATIONS OF VIBQimA. 147 
 
 person who has taken possession by agreement may, nnder certain 
 circumstances, disavow the title under which he had entered ; and 
 that an open and explicit disclaimer of a holding under such title, 
 accompanied with the assertion of an adverse title in himself, and 
 notice to the party imder whom he entered, will make his posses- 
 sion adverse to the rightful owner. The privity existing between 
 them is said to be dissolved by such a proceeding; that his posses- 
 sion becomes tortious, and in effect equivalent to an onster of the 
 rightful owner ; and the statute begins to run from the time of 
 such wrongful possession, as in any other case of a tortious ouster. 
 But this doctrine does riot seem to meet the approbation of the 
 Virginia courts. It is asserted that an adverse possession depends 
 upon the intention with which the possession was taken or held. 
 "Whenever the act itself imports that there is a superior title in 
 another by whose permission and in subordination to whose still 
 continuing and subsisting title the entry is made, such entry can- 
 not be adverse to the owner of the legal title ; and such possession 
 so commencing cannot be converted into an adverse title and 
 ouster. Accordingly, on these familiar principles, the court held, 
 that an entry on land under a parol gift from the owner, and a 
 claim to hold any estate by virtue of the gift, is in its nature a 
 recognition of the continued existence of a subsisting title in the 
 legal owner ; and a claim to hold any estate by gift from the legal 
 owner is a claim to hold in subordination to his legal title, and 
 therefore it was held, that an open, exclusive, notorious and unin- 
 terrupted possession of land for more than twenty years, taken, 
 held and claimed under a parol gift from a plaintiff in ejectment, 
 for a life not yet terminated, is no bar to his recovery in the action. 
 {Clarke v. McGlure, 10 Grattan's E. 305.) 
 
 But, in one case, when a man died seised in fee of a tract of 
 land, having seven children, one of whom took possession of the 
 land soon after his death, claiming that his father had made a will 
 giving it to him for life, with remainder to his own two sons ; and 
 he filed a bill against the other heirs to set up the will, which could 
 not be found, which suit was dismissed for a failure to give security 
 for costs ; but this son continued in possession of the land in these 
 circumstances from the death of his father, in 1823, until his own 
 death, when his sons succeeded to the possession, and they and 
 persons claiming under them continued .in the exclusive possession 
 of the land until 1848, when an action was brought to establish 
 
148 LAW OF EJECTMENT AND ADVEUSE ENJOYMENT. 
 
 the title of the brothers and sisters of the son who first took pos- 
 session upon the death of his father ; and the court held, that the 
 son, having taken possession of the land in 1823, claiming title to 
 it, and his sons having taken possession on his death, and they and 
 those claiming under them having continued to liold the land, 
 claiming title, such taking and holding possession was adverse to 
 the other heirs, and that the statute of limitations commenced to 
 run from the time of such taking possession by the son first named. 
 And in the same case it was held, that the statute runs against 
 femes covert and their husbands, so as to bar a recovery during the 
 coverture. {Caperton v. Gregory, 11 Gratt. E. 505.) 
 
 The courts hold, that when the possessor of land has acknowl- 
 edged a title in the claimant, then the possession will not be 
 deemed adverse ; and that, whenever the act of the possessor 
 acknowledges a right in the claimant, the statute of limitations 
 will not operate, because such acknowledgment, deduced from cir- 
 cumstances, negatives the idea of adverse possession. {Erskine v. 
 N&rth, 14 Gratt. E. 60.) 
 
 It is held, that an actual possession of land claiming the same 
 adversely does not prevent the operation of the deed made by a 
 commissioner of delinquent lands conveying to a purchaser the 
 commonwealth's right to the land. {Smith v. Chapman, 10 Gratt. 
 E. 445. And vide Levasser v. Washhurn, 11 ib. 572TJ 
 
 The courts of Virginia hold, that in an action to recover property, 
 if the defendant has been in adverse possession a suflicient length 
 of time to render the statute of limitations a bar to the action, this 
 possession gives title ; and that it is not necessary to plead the 
 statute. The case in which this doctrine was held was an action 
 of detinue to recover a, slave, but the rule laid down would seem 
 to be equally applicable in an action of ejectment to recover the 
 possession of land. {Layne v. Norria, 14 Gratt. E. 236.) 
 
 They have a statute in old Virginia limiting actions for the 
 recovery of lands lying west of the Alleghany mountains to seven 
 years next after the title or cause of action accrued, and not after- 
 ward. (Acts of 1836-7, p. 11, § 10.) 
 
 In North Carolina, the statute provides that no person or persons 
 having any right or title to any lands, tenements or hereditaments, 
 nor their heirs, shall thereunto enter or make claim, but within seven 
 years next after his, her , or their right or title descended or 
 accrued, and in default thereof such person or persons, so not 
 
TITE STATUTE OF LIUITATIONS OF NORTH CAROLINA. 149 
 
 entering or making claim, shall be utterly excluded and disabled 
 from any entry or claim thereafter to be made; provided, never- 
 theless, that if any person or persons, having any right or claim of 
 lands, tenements or hereditaments, be, at the time the said right or 
 title first descended, accrued, come or fallen, within the age of 
 twenty-one years, feme covert, non compos mentis, imprisoned, or 
 beyond seas, that then snch person or persons may commence his, her 
 or their suit, or make his, her or their entry, at any time within 
 three years next after fail age, discoverture, being of sound mind, 
 or enlargement out of prison, or person beyond seas, within eight 
 years after the title or claim becomes due, take benefit and sue for 
 the same. 
 
 If, in any action of ejectment for the recovery of lands, tene- 
 ments or hereditaments, judgment be given for the plaintifi", and 
 the same be arrested or reversed, such plaintiflT, his heirs or 
 executors, as the case shall require, may commence a new action 
 or suit frona time to time, within one year after such judgment 
 was arrested or reversed. When any person or persons, or the 
 person or persons under whom he, she or they claim, shall be in 
 possession of any lands,' tenements or hereditaments whatsoever, 
 under titles derived from sales, made either by creditors, executors 
 or administrators of any person deceased, or by husbands and 
 their wives, or by indorsement of patents or other colorable title, 
 for the space of twenty-one years, all such possessions of lands, 
 tenements or hereditaments, under such title, are by law ratified, 
 confirmed, and declared to be a good and legal bar against the 
 entry of any person or persons, under the right or claim of the 
 state, provided that the possession so set up shall have been ascer- 
 tained and identified under known and visible lines or boundaries. 
 (N. C. Eev. Code, 1854, ch. 65, §§ 1, 2, p. 371.) 
 
 The occupation of pine lands, by annually making turpentine 
 thereon, is such an actual possession as will vest a constructive 
 possession by one claiming merely under a superior paper title. 
 {Byrum v. Garter, 4 Ired. E. 310.) 
 
 It has been held that a constructive possession of lands, under 
 color of title for twenty-one years, under known and visible 
 boundaries or lines, will not bar the right of entry under the 
 statute. Nor will the actual possession, for twenty-one years, of 
 difierent parts of the lands covered by color of title, by purchasers, 
 parties to whom the color of title was made, avail him as to the 
 
150 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 parts of the land not sold or actually possessed ; for they are distinct 
 tracts held by diiferent persons, in different rights. {Doe v. Her- 
 ring, 1 Murphy's K. 414.) 
 
 The rule that trust an-d fraud are not within the statute of limi- 
 tations is subject to this modification, that, if the trust be con- 
 stituted by the act of the parties, the possession of the trustee is 
 the possession of the cestui que trust, and no length of such pos- 
 session will bar ; but, if a trust be constituted by the fraud of any 
 of the parties, or arises from a decree of a court of equity, or the 
 like, the possession of the trustee becomes adverse, and the statute 
 of limitations will run from the time the fraud is discovered. 
 {Thompson v. Blair, 3 Murphy's E. 583. And vide Sweat v. 
 Arrington, 2 Hayw. R. 129.) 
 
 The courts of North Carolina hold, that a power to sell land, 
 conferred on an executor by will, is a common-law authority ; that 
 it is an appointment that operates as a designation of the person 
 to take under the will, and the piu'chaser is in under the will ; 
 and therefore that no seisin is necessary to sever the power, and 
 no adverse possession, short of seven years, under color of title, 
 will stand in the way of its execution. It was decided, however, 
 that seven years' adverse possession, with color of title, reckoned 
 from the day the authority began, would bar, because the power 
 and the estate are regarded as the same thing ; for if the name of 
 the purchaser had been inserted in the will instead of the power, 
 his estate would have been barred by losing the right of entry, 
 and the power is affected in like manner. The power nmst be 
 regarded as the estate within the statute of limitations. Were it not 
 so, the statute might as well be repealed, for it would be evaded 
 simply by creating a power. {Rodgers v. Wallace, 5 N. C. R. 181. 
 And vide PicJeering \. Pickett, 3 Dev. E. 11.) 
 
 "Where possession of two tracts of land, adjacent to the one in 
 controversy, was lield for seven years, with color of title, though 
 they had all three been conveyed in one deed, by separate and 
 distinct descriptions, the court decided, that this was not a pos- 
 session of the land in question, and would not amount to a bar 
 under the statute of limitations. And it was further held, that 
 cutting trees npon a tract of land susceptible of other uses and 
 enjoyment, and feeding hogs upon it, under a color of title, for 
 seven years, do not constitute such possession as will bar an entry. 
 {Doe V. Cobl, 1 N. C. R. 406.) 
 
TSE STATUTE OF LIMITATIONS OF SOUTH CABOLWA. 161 
 
 The courts hold, that coverture is not a saving against the oper- 
 ation of the statute of limitations, unless the wife must be joined 
 ■with the husband in order to sustain the action. "Where slie may 
 sue alone, or where tlie husband may join the wife with him at 
 his election, the statute bai's. And it was held, that where evic- 
 tion takes place during the coverture, the husband may sue alone, 
 or may join his wife with him at his election ; in such a case, 
 therefore, he is barred by the statute. {Doe v. Tetherow, 2 N. C. 
 R. 393.) 
 
 In the state of South Carolina, any person or persons to whom 
 any right or title to lands, tenements or hereditaments within the 
 state shall descend or come, must prosecute the same within ten 
 years after such right or title accrued, or he or they, and all claim- 
 ing under him or them, will be forever barred to recover the same, 
 excepting, that any person or persons under the age of twenty-one 
 years are allowed five years after he, she or they come of age to 
 prosecute his, her or tlieir claim ; and any person or persons 
 beyond the seas, or out of the limits of the state, ferns covert, or 
 imprisoned, are allowed two years to prosecute their right or title 
 or claim to any such lands, tenements or hereditaments after such 
 right and title accrued to them or any of them, but at no time 
 thereafter ; and persons non compos mentis have one year after 
 the disability ceases in which to prosecute their claim. And the 
 plaintiff or demandant in ejectment is allowed to bring more than 
 one action of ejectment for the recovery of lands, witl^in the time 
 limited for the commencement thereof. The statute further pro- 
 vides, that such statute of limitations shall not be construed to 
 defeat the rights of minors, when the statute has not barred the 
 right in the life-time of the ancestor, before the accrual of the right 
 of the minor. (S. 0. Stat, at Large, 1712, 1744, 1788, 1824.) 
 
 In the state of South Carolina, the maxim nullum tempus 
 ocount regi is held to apply to the state ; and it is therefore 
 held there, that no title to lands can be acquired against the 
 state by the statute of limitations. And it was further held, 
 that the statute of limitations cannot bar an escheat, or give 
 a right to escheated property. {Harlock v. JacTcson, 1 Const. 
 E. 135.) 
 
 The statute of limitations is not allowed to run in favor of a 
 man who was employed to act as agent, but purchased for himself. 
 He is considered a trustee ; and his employer is held to be entitled 
 
152 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to the benefit of the purchase. {Hutchinson v. Mutchinson, 4 Des. 
 Eq. E. 77.) 
 
 As a rule, the statute of limitations does not operate in cases of 
 fraud and of trusts ; but as soon as the fraud is discovered, the 
 statute begins to run. ( Wamburser v. Kennedy, 4 Des. Eq. R. 
 497. And vide Van Rhyn v. Vincenfs Mrs., 1 McCord's Ch. 
 E. 314.) 
 
 The statute of limitations does not run against cestuis que trust, 
 in favor of the trustee, or those volunteers claiming under him ; 
 so held by the courts of South Carolina. {OistY. Cattell, 2 Des. 
 Eq. E. 55.) 
 
 A person who was a minor at the time of the death of his 
 ancestor has five years after his coming of age to bring his 
 action for the recovery of his lands. {Rochell v. Holmes, 2 Bay's 
 E. 487. And vide Saxon v. BarTcsdale, 4 Des. Eq. E. 522, 528.) 
 
 It has been held, that possession of land five years, under a 
 sale from a defendant, who has a judgment against him, will be a 
 good bar against a judgment creditor, or those claiming under him, 
 who has laid by that time without reviving his judgment, or bring- 
 ing suit against such possessor. {McRace v. Smith, 2 Bay's E. 339.) 
 
 It is held that the purchaser of an infant's lands is in no worse 
 situation than the infant was ; if, therefore, the infant's title is not 
 barred by the statute of limitations, at the time of the sale, the 
 purchaser's is not. And it was held, in the same case, that the 
 moiety of one of several co-tenants of land will protect the title 
 of the others against the operation of the statute of limitations. 
 {Thomson v. Gaillard, 3 Eichardson's Law E. 418.) It is held 
 that an infant, under the act of 1824, as all other persons are, is 
 entitled to ten years from the accrual of his right of action, 
 within which to prosecute his claim to land ; but that he is not 
 entitled to ten years, under the act of 1824, within which to sue, 
 after arriving at a^e,,but only to five years under the act of 1788. 
 {Hill V. Connelly, 4 Eich. E. 615.) 
 
 The courts of South Carolina hold, that one cannot show that 
 his possession was changed into an adverse possession, without 
 pi'oving that notice of the change was, in some way, received by 
 the landlord. {Floyd v. Mintsey, 7 Eieh. E. 181.) And it is also 
 held in South Carolina, that in order to acquire a title by posses- 
 sion, against a grant, there must be an actual pedis possessio 
 within its limits for ten years ; a constructive possession arising from 
 
THE STATUTE OF LIMITATIONS OF GEORGIA. 153 
 
 an actual possession outside of its limits, will not be sufficient. 
 And fugitive trespasses, such as cutting timber, marking trees, and 
 making an entry or survey, do not, of tliemselves, it is held, con- 
 stitute such a possession as will bar the owner. {Slice v. Derrick, 
 2 Kich. E.. 627.) Possession, to give title to land under the statutes 
 of South Carolina, must be adverse, continuous and unbroken, for 
 the whole statutory period. {Hill v. Saunders, 6 Rich. R. 62.) 
 
 In Georgia, all suits for the recovery of real estate must be 
 bi'ought within seven years after adverse possession commences, 
 and not after. But no possession will be considered adverse unless 
 e\adenced by written evidence of title, nor will any forged or 
 fraudulent title be evidence of adverse possession. 
 
 "When any widow shall be entitled to dower, application for the 
 assignment of such dower must be made by the widow within 
 seven years from the time such right of dower accrued, and not 
 after. 
 
 But, when any of the persons entitled to sue for the recovery of 
 any real estate shall be married women, idiots or lunatics, or 
 impi-isoned, or under the age of twenty-one years, at the time the 
 cause of action accrued, such persons are entitled to sue within 
 the time limited, after their respective disabilities are removed; 
 and if, after the right to sue commences, persons shall come under 
 any of the disabilities mentioned, the statute will cease to operate 
 against their rights until such disabilities shall be removed -, pro- 
 vided that no person who shall voluntarily take upon himself such 
 legal disabilities will be entitled to the provisions of the excep- 
 tions of the statute. 
 
 The statute further provides that, if any person, to whom any 
 right to sue for the recovery of any real estate shall accrue in his 
 life-time, shall depart this life before suit brought, the time or times 
 within which suit is to be brouglit under the provisions of the act, 
 shall not be computed against his right from the time of his death 
 until there shall be a representative upon his estate, and when the 
 right to sue shall not accrue until after the death of any person, 
 the times within which suit is to be brought will not begin to be 
 computed until there is representation upon his estate ; provided 
 that in each of these cases there be representation by an executor 
 or administrator, duly qualified, within five years from the death. 
 
 It is further provided, that when any person, against whom a 
 right to sue exists, shall remove from the state of Georgia, the 
 20 
 
154 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 times mentioned in the statute, in wliicli suits are to be brought, 
 shall cease to be computed in his favor from the time of such 
 removal, and so continue until he shall return and fix his residence 
 in the state; and where there is a joint right to sue in favor of 
 several persons, and some of them are under the disabilities men- 
 tioned and others not, the times within which suits are to be 
 brought under the provisions of the act, shall not begin to be 
 computed until sueli disabilities are removed. (Laws of 1856, No. 
 179, §§ 1, 13, 19, 20, 21, 23, 24.) 
 
 The statute of limitations of Georgia does not run against the 
 true owner of land, in favor of the tenant in possession, while he 
 disclaims title in himself, and is seeking the true owner with the 
 avowed purpose of purchasing from him ; and it is held to be 
 immaterial whether this disclaimer and recognition of title in 
 another be ma'de before or after the seven years' bar has attached. 
 It is further held, that cutting fire wood and rail timber on land 
 are not such acts of ownership as to constitute adverse possession. 
 {Long V. Young, 28 Georgia E. 130.) This doctrine of disclaimer 
 was held in the case of a tenant in possession of land, who dis- 
 claimed owning the land, for the avowed reason that in such case 
 he holds in subordination to the title of the true owner ; and the 
 rule was laid down in the same case, that possession of land 
 must not only be adverse but continuous, in order to ripen into 
 a statutory title. Nor will it suffice to prove seven years con- 
 tinuous possession by difi'erent tenants, between whom there is no 
 privity. In such case, the different tenants are held to be but 
 successive transgressors, as against the title of the true owner. 
 {Roe V. Doe, 30 Georgia R. 971.) 
 
 So also it has been held, that one who goes into possession of 
 land as a mere " squatter," disclaiming title, holds as tenant at 
 will, of the true owner, and cannot, by secretly attorning to 
 another, change the character of his possession, so as to make it 
 adverse. {Gay v. Mitchell, 35 Georgia E. 139.) 
 
 In Florida, actions for the recovery of lands, tenements or here- 
 ditaments must be commenced within twenty years next after the 
 title or cause of action accrued, and the same cannot be maintained 
 afterward ; and no person or persons having any right or title of 
 entry into any land, tenements or hereditaments can make an 
 entry, but within twenty years next after such right or title accrued, 
 and all such persons are barred from any entry afterward. Pro- 
 
TBE STATUTE OF LIMITATIONS OF ALABAMA. 155 
 
 vided, however, that if any person or persons entitled to such 
 action, or to such right or title of entry, shall he or were under 
 the age of twenty-one years, feme covert, nan compos mentis, im- 
 prisoned, or not within the state at the time such right or title 
 accrued, or coming to them, the action may be brouglit, or the 
 entry made, at any time within ten years next after such disabilities 
 removed, or the death of the person so disabled, and not afterward. 
 
 In all writs of right, and other actions possessory, any person 
 may maintain a writ of right upon the possession or seisin of his 
 ancestor or predecessor, within fifty yeai's ; and any other posses- 
 sory action upon the possession or seisin of his or her ancestor or 
 predecessor, Ayithin forty years next before the teste of the writ ; but 
 no person can maintain a real action upon his own possession or 
 seisin, but within thirty years next before the teste of the writ. 
 (Thomp. Dig. 1847, p. 441.) 
 
 The general rule is recognized by the courts of Florida, that 
 the statute of limitations will not avail a party in whom the law 
 raises a trust, as against the cestui que use. {Broome v. Alston, 8 
 Florida R. 307.) 
 
 In Alabama, all actions for the recovery of lands, tenements or 
 hereditaments, or for the possession thereof, in which the state is 
 the claimant, must be commenced within twenty years next after 
 the cause of action accrues ; and those in which a party other 
 than the state is the claimant must be commenced within ten years 
 next after the cause of action accrues. The cause of action is 
 deemed to have accrued at the time the entry is made, and the 
 entry is deemed to have been made at the time the right of entry 
 accrues. If the person entitled to bring the action or make the 
 entry be, at the time his right accrues, an infant, &feme covert, or 
 insane, or imprisoned on a criminal charge for a term less than for 
 life, the action may be brought, or entry made, at any time within 
 three years after the disability ceases, but not afterward. But 
 the period of limitation, however, can in no case be extended 
 longer than twenty years after the cause of action or right cf 
 entry first accrues ; nor does the exception extend to a married 
 woman, in respect to her separate estate. 
 
 If, in the action for the recovery of real property, or the pos- 
 session thereof, judgment be given for the plaintiff, and the same 
 be arrested or reversed on writ of error, such plaintiff, his or her 
 heirs, executors or administrators, as the case shall require, may 
 
156 LAW OF EJECTMENT AND ADVERSH ENJOYMENT. 
 
 commence a new action within one year after such determination 
 of the first suit, although the period limited may have expired. 
 (Code, 1867, §§ 2899, 2900, 2909, 2910.) 
 
 By analogy to the statute of limitations applicable to actions at 
 law for the recovery of land, the courts of Alabama hold, that the 
 adverse enjoyment, for ten years, of the privilege of damming up 
 the water of a stream so as to raise the level without overflowing 
 the banks, creates the presumption of a right, which a court of 
 equity will protect ; but, to bring himself within this principle, 
 the plaintiff must show an adverse user, for the prescribed period, 
 to the extent claimed by him in his bill. ( Wright v. Moore, 38 
 Ala. R. 593.) 
 
 The courts of Alabama hold, that since the third section of the 
 pr.e-emption law of 1834 (4 U. S. Stat, at Large, 678) allows 
 entries to which the general limitation of two years does not 
 apply, the courts are bound to presume that any particular entry, 
 the illegality of which is not affirmatively shown, was authorized 
 by law. {SaUmarsh v. Crommelin, 39 Ala. E.. 54.) 
 
 In the state of Mississippi, an action for the recovery of land 
 must be commenced within ten years after the cause of action 
 thereto accrued, and not afterward ; and no person can make any 
 entry into lands after the expiration of ten years from the time at 
 which the right to make such entry accrued ; provided, however, 
 that the time during which any person having such right of action, 
 or right to make sucb entry, shall have been under the age of 
 twenty-one years, a feme covert, an idiot, lunatic, or of unsound 
 raind, or imprisoned, or absent beyond the limits of the United 
 States, on business of the state of Mississippi or of the United 
 States, shall not be taken or computed as part of the period thus 
 limited. But if any such person die while under any such dis- 
 ability, no further time beyond two years will be allowed for the 
 disability of any other person. (Miss. Eev. Code, 1857, ch. 57, 
 §§ 1, 2, p. 398.) 
 
 A party to an action of ejectment cannot defeat the plaintiflF's 
 recovery, by showing that he has purchased an outstanding title, 
 which was barred by the statute of limitations at the -time of his 
 purchase. The possession of the wife's realty in which the hus- 
 band is entitled to a life estate by the curtesy, by a grantor of 
 the husband under a deed in fee simple, is held to be in subordina- 
 tion, and not adverse to the right of the wife ; and such possession 
 
TUB STATUTE OF LIMITATIONS OF TENNESSEE. 157 
 
 therefore, for the period prescribed .by the statute of limitations, 
 will bar, in favor of the wife, an outstanding title adverse to hers. 
 {Griffin v. Sheffield, 38 Miss. ^. 359.) 
 
 When the declaration in an action of ejectment does not show 
 that the defendant was in possession of the land, tlie character of 
 that possession and the length of time for which enjoyed, the 
 question of the bar of the statute of limitations on account of the 
 adverse possession cannot be raised by a demurrer to the declara- 
 tion . {Tush -lio-Yo- Tubby v. Bar, 41 Miss. K. 52.) 
 
 Tliero was an act passed by the legislature of the state in 
 August, 1861, suspending the statute of limitations, but the same 
 was held by the high court of errors and appeals to be unconstitu- 
 tional. {Hill V. Boyland, 49 Miss. E. 618.) There was also 
 aiTother act passed by the Legislature on the 29th January, 1862, 
 whereby the statute of limitations was suspended " until twelve 
 months after the close of the present war, or until otherwise pro- 
 vided by law." (Laws of 1862, ch. 10, p. 78.) This act has been 
 held by tlie high court of errors and appeals to be valid ; and the 
 period of time for which the statute of limitations was suspended 
 in the state during the war, is held to be computed from the date 
 of its passage until twelve months after the 2d of April, A. D. 
 1866, the time fixed by the proclamation of the president of the 
 United States as the " close of the war." {Oriffing v. Mills, 40 
 Miss. E. 611. Vide also Hill v. Boyland, supra.) 
 
 In Tennessee, in all cases wliere any person or persons, their 
 heirs or assigns, after having had seven years' possession of any 
 lands, tenements or hereditaments, granted by the state, or the 
 state of JTorth Carolina, holding or claiming the same by virtue 
 of a deed or deeds of conveyance, devise, grant, or other assurance 
 purporting to convey an estate in fee simple, and no claim by suit 
 in law or equity, effectually prosecuted, set up or made to such 
 lands, tenements or hereditaments, within such period of seven 
 years, then, and in that case, such person or persons, their heirs or 
 assigns, so holding possession as aforesaid, will be entitled to keep 
 and hold in possession such quantity of land as may be specified 
 and described in his, her or their deed of conveyance, devise, grant 
 or other assurance, in preference to and against all and all manner 
 of person or persons whatsoever. In a word, such seven years' pos- 
 session of such lands, uftder the claim specified, and in the circum- 
 stances specified, amounts to a title in fee. 
 
158 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The statute further provides that any person or persons, and 
 tlieir heirs, who njay neglect, for the term of seven years, to avail 
 themselves of the benefit of any title, legal or equitable, which he, 
 she or they may have to anj' lands, tenements or hereditaments 
 within tlie state, by suit of law or equitj^, effectually prosecuted 
 against the person or persons in possession, shall be forever baried ; 
 and tlie person or persons, their heirs or assigns, so holding or 
 keeping possession as aforesaid, for the term aforesaid, shall have 
 a good and indefeasible title in fee simple to such lands, tenements 
 or hereditaments. But if the person entitled to bring and prose- 
 cute such action is, at the time of said right or title first descended, 
 accrued, come or fallen, within the age of twenty-one years, feme 
 covert, nan compos mentis, imprisoned, or beyond the limits of the 
 United States and the territories thereof, then such person or llis 
 heirs may, notwitlistanding the seven years be expired, bring his 
 suit or action as he might have done except for the act of limita- 
 tion, so as such person or his heirs shall, within three years after 
 the disability ceases, take benefit of and commence such suit, and 
 at no time after the said three years. 
 
 If judgment, in any such action for the claimant, be arrested or 
 reversed, a new suit may be commenced within one year thereafter. 
 The act of limitation is to have no bearing on the lands reserved 
 for schools. (Code, 1858, p. 531, §§ 2766, 2757, 2763-2768.) 
 
 It has been enacted by the general assembly of the state of Ten- 
 nessee, that no statute of limitations shall be held to operate from 
 and after the 6tli day of May, 1861, to the 1st day of January, 
 1867, and from the latter date the statutes of limitations shall com- 
 mence their operation according to existing laws, and the time 
 between the 6th day of May, 1861, and the 1st day of January, 
 1867, shall not be computed. 
 
 The same act further provides, that if at any time any cause of 
 action shall accrue against any person who shall be out of the 
 state of Tennessee, the action may be commenced within the time 
 limited therefor, after such persons shall come into the state, and 
 after any cause of action shall have accrued, the person against 
 whom it has accrued be absent from or reside out of the state, the 
 time of his absence or residence out of the state shall not be taken 
 as any part of the time limited for the commencement of the action. 
 (Laws of 1865, ch. 10.) 
 
TBB STATUTE OF LIMITATIONS OF KENTUCKY. 159 
 
 Probably this act of 1865 cannot .have the power to revive any 
 cause of action wliich had already been barred at the time of its 
 passage, by the statute of limitations then in force. The general 
 principle is well settled that no statute can be enacted to revive 
 causes of action already barred upon pre-existing statutes. But 
 it was competent for the legislature to pass a law suspending the 
 operation of the statute of limitations in respect to all causes of 
 action then in life. So also that provision of the recent act, which 
 declares that the time of a defendant's absence from the state shall 
 not bo taken as any part of the time limited, will probably not 
 affect those cases where the rights of the parties were fixed before 
 the statute was passed. ( Vide Battles v. Forbes, 18 Pick. P. 532.) 
 
 It has been held, under the Tennessee statute of limitations, 
 that the successive possession of naked trespassers cannot be con- 
 nected so as to make out the bar of the statute, in ripening a title 
 to land. But it is not so as to successive possessions, when the 
 parties respectively have held under deeds purporting to convey 
 an estatein fee simple; though said deeds may be fraudulent, yet 
 such possession may be connected, and an adverse possession of 
 seven years, thus made out, will perfect the title. It is held that 
 the statute has made no exception, and that the courts can make 
 none. (Clark v. Chase, 5 Sneed's P. 636.) And it has been held 
 that the possessions of successive tenants, under a landlord claiming 
 title by entry only, may be connected so as to create the bar of the 
 statute of limitations. It is not necessary that a single tenant 
 should have held possession for the whole term required by the 
 statute. {Sims v. Eastland, 3 Head's P. 368.) 
 
 It is held, that if real estate is held in common, and one tenant 
 assumes to convey the entire land, or any specific part of it, by 
 metes and bounds, his deed will be a color of title, and possession 
 under it for seven years will bar their right to recover the land 
 conveyed. Such deed and possession of the land is held to be an 
 actual ouster, and disseisin of the co-tenant, which he is bound to 
 notice. In order to create this adverse relation, the courts hold 
 that no formal notice from the vendee in possession is necessary. 
 ( Weisinger v. Murphy, 2 Head's P. 674.) 
 
 In the state of Kentucky, an action for the recovery of real 
 property, or the possession thereof, must be brought within fifteen 
 years after the right of action first accrued to the plaintiff, or the 
 person under whom he claims; provided, however, that if the 
 
160 LAW OF HJECTMENT AND ADVERSE EKJOYM'ENT. 
 
 plaintiif, or tlie person from whom he claims, was, at the time sncli 
 action accrued, an infant, married woman, or of unsound mind, 
 the action may be brought at any time within three years after 
 the disability ceases. But the period within which the action 
 can be brought cannot be extended by reason of aify death or 
 disability beyond thirty years from the time the cause of action 
 first accrued. When a person, and those under whom he claims, 
 have been in the actual occupation and possession of lands, under 
 a title of record from the state, such possession is declared to be a 
 bar to any right of entry or action under an adverse title. But 
 this provision of the statute does not affect persons laboring under 
 the disabilities aforesaid, nor persons who may be out of the 
 Uuited States, in the employment of the United States, or the 
 state of Kentucky, until the expiration of seven years from the 
 time the disability ceases. (3 Ky. E. S. 1860, oh. 63, g§ 1, 2, pp. 
 123, 125.) 
 
 It is further provided by the statute, that when an action has 
 been or shall be commenced, in due time, and in good faith, in any 
 court of the commonwealth, and the defendants therein have, or 
 sliall make defense thereto, in such court, and it shall be adjudged 
 that such court has no jurisdiction of such action, the plaintiif or 
 his representative may, within three months from the time of such 
 judgment, commence a new action in the proper court. (Supple- 
 ment to K. S. 1866, p. 724-.) 
 
 In May, 1865, the legislature of Kentucky passed an act declar- 
 ing that the provisions of chapter sixty-three of the Hevised 
 Statutes, entitled " Limitations of actions and suits," shall extend 
 to and embrace all ^ases, whether the right of action accrued 
 before or after the Eevised Statutes took effect. (Supplement to 
 E. S. 295.) This act also brings up the question as to whether 
 the provision of the statute can operate retrospectively, so as to 
 revive an action already barred by the statute in force at the time 
 the latter act was passed. And the subject has been before the 
 court of appeals of Kentucky, and it has been held tliat any 
 attempt by the legislature so to change the remedy as to impair 
 the obligation of a contract is prohibited by the constitution. 
 Upon this principle, the court declare the act of March 15, 1862, 
 by which, after thirty days, the limitations of actions, contained 
 in chapter sixty-three of the Eevised Statutes, should extend to and 
 embrace all cases, whether the right of action accrued before or 
 
, T3E STATCTE OF LIMITATIONS OF LOUISIANA. 161 
 
 iafter tlie Revised Statutes took effect, nnconstitntional and void. 
 {Berry v. Ransdall, 4 Metcalfe's E. 292. And vide Iledger v. 
 RennaJc^r, 3 ib. 255.) The act passed ujion by the court in Berry 
 V. Ransdall is precisely similar in terms to the one passed in 
 1866, and no reason can be discovered why the act of 1866 should 
 not receive the same fate as that of March 15, 1862, although the 
 legislature must have been aware of the decision of the court of 
 appeals at the time of the passage of the act of 1866. 
 
 It lias been held in Kentucky, that the commonwealth cannot 
 be disseised ; and that the statute of limitations does not run • 
 against ,the state. {Gommonwealth v. MoGowan, 4 Bibb's R. 62. 
 Chiles V. Calk, Ib. 554) 
 
 ■ The statute of limitations does n6t reach to matters of direct 
 trust, as between trustee and cestui, que trust ; and trustees can- 
 not urge! the lapse of time under the statute of limitations, 
 against the cestui que trust. {Turner v. Debell, 2 Marsh. R. 384. 
 Lexington v. Lindsay, Ib. 445.) And it may be regarded as a 
 settled rule, that the statute of limitations cannot^ either in a 
 court of law, or of equity, protect a trustee against the demands 
 of his cestui que trust. {Thomas v. White, 3 Littel's R. 177, 180.) 
 
 A. feme covert is allowed seven years after discoverture, to bring 
 her action for her lands. {Gore v. Marshall, 3 Marsh. R. 319.) 
 
 A holding of land under a bond from the patentee cannpt be 
 considered as adverse thereto. {Fawks v. Darnall, 5 Lift. R. 217.) 
 
 The limitation act of 1814 operates on conveyances made by 
 non-residents to residents before the passage of the act, so as 
 to take away the ten years allowed by the act of 1796, to com- 
 mence suit after return to the state. {Luclcetty. Dunn, 3 Lift. R. 
 218.) 
 
 A mere contract for a deed, though the purchaser enter under it, 
 does not place him in a situation to hold adversely, till he perform/ 
 the condition of the purchase by paying the purchase-money ; for 
 the reason that such a possession cannot be considered hostile in 
 its inception. {Botts v. Shields, 3 Litt. R. 34. And vide Voorhiea 
 v. Wliitis Heirs, 1 Marsh. R. 37.) 
 
 ^ In the state of Louisiana, thirty years' possession prescribes 
 land, though possessed without any title, or knavishly. If pos- 
 sessed fairly and honestly and by just title, that is, one by virtue 
 of which property may be transferred, such as a sale or donation, 
 
 though no real right may be thereby given, ten yeari possession 
 21 
 
162 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ■will be sufficient, if the true proprietor resides in the state, and 
 twenty years in case he resides abroad. 
 
 Besides the thirty, twenty and ten years' prescription with 
 respect to lands, there is another of four years, which runs against 
 the minor after coming of age, as to any real estate alienated by 
 the tutor in cases not provided by law. 
 
 For the prescription arising from the ten or twenty years' pos- 
 session, there must be good faith and apparently good title ; if, 
 therefore, the title be defective with -respect to form, there can be 
 no basis for the ten or twenty years' prescription. Any interrup- 
 tion, either natural or legal, suspends prescription. A natural 
 interruption is said to take place, when the possessor is deprived 
 of possession of the thing for more than one year, either by the 
 ancient proprietor or by a third person. A legal interruption 
 takes place, when the possessor has been cited to appear before 
 a court of justice on account of either the property or the pos- 
 session. 
 
 Prescriptipn likewise ceases to run, when the debtor or possessor 
 makes acknowledgment of the right of the person whose title they 
 prescribed. 
 
 Husbands and wives cannot prescribe against each other ; and 
 minors and persons under interdiction cannot be prescribed against. 
 Married women may be prescribed against, though not separated of 
 property, for all belonging to them and administered by their hus- 
 bands, saving their recourse against their husbands. But prescrip- 
 tion does not take place during marriage, as it respects property 
 alienated which made a part of the dowry, nor in any case during 
 marriage wnen the action of the wife may be prejudicial to her 
 husband. 
 
 Pinally, lands not acquirable by alienation ca:nnot be obtained 
 by prescription. 
 
 Prescription may be pleaded in any stage of the action, even on 
 an appeal ; and creditors, and every other person who may have 
 an interest in acquiring an estate by prescription, liave a right to 
 plead it, even in case the person claiming such estate should 
 renounce the said right of prescription. (Abstract from the La. 
 Civil Code. 4 Griffith's Annual Law Eegister, 686.) 
 
 By the original code, -there was a saving clause in favor of 
 foreigners or citizens of other states in respect to prescription, 
 requiring twenty years instead of ten ; but this has been amended 
 
THE STATUTE OF LIMITATIONS OF ARKANSAS. 163 
 
 SO that this class of persons now stand on the same footing as 
 residents of the state. (La. Kev. Stat. 1856, p. 82, § 29.) 
 
 It ha,s been held by the courts, that possession cannot be pleaded 
 against the public, unless it is immemorial. {AUard v. Lobau, 
 3 Martin's E. [N. S.] 294.) 
 
 Purchasers under the same title, without partition, cannot pre- 
 scribe against each other, by the lapse of ten years. {Broussard 
 V. Duhamel, 3 Mart. E. [N. S.] 11. And vide Gravier v. Liv- 
 ingston, 6 Mart. E. 410.) 
 
 It is a clear principle of law, that a possessor, cannot avail him 
 self of prescription against minors. {Calvit v. Innis, 10 Mart. 
 E. 289» And vide Gayoso De Lemnos v. Garcia, 1 Mart. E. 
 [N. S.] 284.) And prescription does not run against the wife in 
 favor of the purchasers of her property, although separated. 
 {Prondhomine v. Dawson, 3 Mart. [IST. S.] E. 161.) 
 
 In Arkansas, three years' possession of any lands, tenements or 
 hereditaments by any person or persons claiming the same by vir- 
 tue of any deed, devise, grant or assurance, entitles such person or 
 persons, their heirs or assigns, to keep and hold possession of such 
 quantity of land as is specified and described in such deed, devise, 
 grant or assurance ; and the person or persons, their heirs or 
 assigns, so holding or keeping possession as aforesaid, for the time 
 aforesaid, are declared to have a good and indefeasible title in fee 
 simple to such lands, tenemeTits or hereditaments ; provided, how- 
 evei;, that if the person entitled to bring an action for such lands, 
 tenements or hereditaments is, at the time of the taking of such 
 possession, or the accruing of such action, an infant, feme covert, 
 or non compos mentis, then such person may bring his action at 
 any time within two years after the disability ceases. 
 
 All actions for the recovery of real property, or the possession 
 thereof, must be commenced within seven j'ears after the cause of 
 action accrues; except. that any person, under either of the dis- 
 abilities before mentioned at the time the right of action accrued, 
 may bring his action at any time within three years next after the 
 disability ceases. No entry is valid as a claim, unless an action 
 is brought thereon within one year after the entry was made, and 
 within seven years after the right first accrued. (Dig. Stat. 1858, 
 ch. 106, §§ 1,"2, 3, p. 748.) 
 
 The old statute of limitations of Arkansas provides, that no 
 action for the recovery of possession of lands should be maiii- 
 
164 LAW OF DJECTMENT AND ADVERSE ENJOYMENT. 
 
 tained, unless it appeared that the plaintiff, liis ancestor, prede- 
 cessor or grantor was seised or possessed of them within ten years 
 before the commencement of the action ; and it is held, that to 
 bar the plaintiff's claim actual possession must be shown by the 
 defendant ; lapse of time and actual possession must unite. The 
 possession must be so open and exclusive as to amount to a dis- 
 seisin, or an ouster of the plaintiff's possession ; and the acts of 
 the defendant must be plain and unmistakable, and such as prove 
 his intention to use the land as owner. Constructive possession 
 by the plaintiff -is sufficient ; and if he proves that, then tlie 
 defendant must prove by sufficient acts that more than the time 
 limited before suit, he took actual possession and continued it 
 adversely, so as to put an end to the constructive possession ; and 
 that the latter has not been renewed. {Trapnall v. Burton, 24 
 Ark. E. 371.) 
 
 Finally, in the state of Texas, the statute prpvides that the per- 
 son who has right of entry into any real estate, consisting of lands, 
 tenements or hereditaments, must make entry therein witliin ten 
 years next after this right shall have accrued, and on failure shall 
 be forever barred thereafter. Yet if the person so entitled be 
 under the age of twenty-one years, a feme covert, or insane, or if 
 forcible occupation of the premises, or county containing them, by 
 a public enemy, prevent entry, the time of such disability will not 
 be computed as a part of the period limited. The death of one, 
 dying possessed of such estate without right, will not be such 
 descent to the heir of the decedent as to bar entry of the person 
 entitled at the time of the descent, unless such decedent shall have 
 had five years peaceable possession. Peaceable possession, within 
 the scope of the act, is such as is continuous and not interrupted 
 by adverse suit to recover the estate. 
 
 The statute further provides, that every suit to be instituted to 
 recover real estate, as against him, her or them, in possession under 
 title, or color of title, shall be instituted within three years next 
 after the cause of action shall have accrued, and not afterward ; but 
 in this limitation is not to be computed the duration of disability 
 to sue, from minority, coverture, or insanity, of him, her or them 
 having cause of action. The term "title," as used in the statute, 
 is defined to be a regular chain of transfer from or under the sove- 
 reignty of the soil ; and color of title is constituted by consecutive 
 
THE CLAIMANT''S TITLE IN EJECTMENT. 165 
 
 chain of such transfer down to him, her or them in possession, 
 without being regular. 
 
 Five years' peaceable possession of real estate, by a person claim- 
 ing under a deed or deeds, duly registered, and who has cultivated, 
 used and enjoyed the same, and paid tax thereon during the whole 
 time, is declared to give full title of such land, except as to the 
 state ; and ten years' similar possession, without any evidence of 
 title, will give the naked possessor full property, precursive of all 
 other claims, in and to six hundred and forty acres of land, 
 included in the improvement, yet the right of the government is 
 not to be barred; and there is saved to the person or persons 
 having the title and cause of action, the duration or disability to 
 sue from nonage, coverture or insanity. (Oldham & White's 
 Dig., 300, 301.) 
 
 Adverse possession taken and held, with the requisites and cir- 
 cumstances specified in the statute, for the time limited in the 
 provision of the statute under which the possessor sets up his right, 
 is held to form an effectual bar to the prosecution of any suit or 
 claim as against such possession. But the possession must be 
 actual, with a manifest intention to hold and continue it. {Horton 
 V. Crawford, 10 Texas E. 382. Wheeler v. Moody, 9 ib. 372. 
 And vide Mason^s Heirs v. McLaughlin, 16 ib. 24. Williamson 
 V. Simpson, Ib, 433. Castro v. Wurzback, 13 ib. 128.) 
 
 CHAPTEE IX. 
 
 THE NATURE OF THE TITLE OF THE CLAIMANT IN AN ACTION OF 
 EJECTMENT — THE ETJLE IN OEDINARY CASES. 
 
 The word " title " is used in this chapter in its ordinary significa- 
 tion, as denoting the claimant's legal or actual right to the prop- 
 erty in dispute. -This definition should be borne in mind, for the 
 reason that title to land in the action of ejectment may be 
 established in various ways. In some cases, although.the claimant 
 may not, \afact, have title to the land, according to the general 
 acceptation of the term, the circumstances may be such as, that 
 between the parties the title is established. For example, when- 
 
166 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ever a person has been let into possession by the lessor, or those 
 under whom he claims, tlie lessee is estopped from disputing the 
 title in the sense indicated, although he may shoy its subsequent 
 expiration ; and it is only incumbent on the claimant in such cases, 
 to show the manner in which the defendant obtained possession, 
 and that his right to such possession has ceased. The claimant 
 may not, in point oi fact, own the land, or have any legal title to 
 it, and yet, as against the defendant, the law assumes that he has 
 a right to the disputed property. ( Vide Sullivan v. Stradling, 2 
 "Wils. E. 208. Parker v. Manning, 7 Term E. 539. Cooh v. 
 Loxhy, 5 ib. 4. Blake v. Foster, 8 ib. 487. England v. Slade, 4 
 ib. 682. Hodson v. Sharpe, 10 East's E. 355. Graham v. Peat, 
 1 ib. 244. Baker v. Mellish, 10 Ves. Jr. E. 544. Gravenor v. 
 Woodhouse, 1 Bing. E. 38. Phillips v. Pearse, 5 Barn. & Ores. 
 E. 433.) These cases chiefly arise where the relationship of land- 
 lord and tenant has subsisted between the parties, which will be 
 examined in other chapters ; although the eases are not confined 
 exclusively to those in which the relation of landlord and tenant 
 is involved. Tlie rule of law, that a person coming into possession of 
 lands under the agreement or license of another cannot be per- 
 mitted to deny the title of the latter, when called upon to surren- 
 der, is of almost universal application. Even if he had a valid 
 title at the time, he is deemed to have waived it, and, as between 
 the parties, to have admitted title in the person under whom he 
 entered. For instance, one making a contract to buy land, and 
 taking possession under it' though strictly the relation of landlord 
 and tenant is not thus created, yet the vendee, in ejectment by the 
 vendor against him, is absolutely estopped from either showing 
 title in himself, or setting up an outstanding title in another. The 
 ■agreement to purchase is an acknowledgment of the title of the 
 vender, and hence the vendee is not permitted to set up an out- 
 standing title, when called upon to respond in the action of eject- 
 ment. {Jackson v. Ayres, 14 Johns. E. 224.) And a claim of 
 title, which cannot be set up by a person while in possession, cannot 
 be set up by another person who comes into possession under him. 
 This doctrine applies to the case of a person who comes into posses^ 
 sion, either as an intruder or under one who has so purchased ; and in 
 either case he is precluded from questioning the plaintiff s ri^ht of 
 possession. ( Tide Jackson v. Harder, 4 Johns. E. 202. Jackson v. 
 Bard, Ib. 230. Jackson v. Walker, 7 Cow. E. 637.) 
 
THE CLAIMANT'S TITLE IN EJECTMENT. 167 
 
 Where a parent, having a possessory title to lands, dies in pos- 
 eession, leaving several children, his heirs at law, who succeed to 
 such possession, it is held that it is not competent for one or more 
 -of such heirs, who have obtained tlie exclusive possession of the 
 whole of 'the premises, to defeat a recovery in ejectment by the 
 co-heirs of the proportional parts or shares, by setting up a title 
 acquired from the owners of the land ; to avail themselves of such 
 title, they must first surrender possession to their co-heirs, and then 
 Dring ejectment. (Phelan v. Kelly, 25 "Wend. R. 389. And vide 
 Jackson v. Spear, 1 ib. 401.) 
 
 But in this place, the consideration is limited to those cases in. 
 which the claimant is required to show some title to the possession 
 of the land in dispute, beyond the mere termination of the right of 
 the defendant to continue therein ; and the subject will be the more 
 readily comprehended by considering the particular persons, who, 
 by reason of their estate and interest in the lands, are entitled to 
 maintain the action of ejectment, and the rules by which those 
 rights have been regulated. 
 
 I. Upon this subject, it has been said by a learned writer, that 
 a tenant for years cannot, before entry, maintain an action of tres- 
 pass or ejectment, because those acts complain of a violation of the 
 possession, and therefore cannot be maintained by any person who. 
 has not had an actual possession ; but it has been well suggested, 
 that this reasoning does not seem applicable to the modern princi- 
 ples of the remedy by ejectment. (Adams on Eject. 60.) The 
 action of ejectment, although in form a fiction, is in substance a 
 remedy pointed out to him who has a right to the land, of which 
 he is wrongfully deprived ; and it is usually the title of the lessor, 
 and not of the nominal lessee, that is to be decided. {Carroll v. 
 Norwood'' s Heirs, 5 Harr. & Johns. K. 173.) 
 
 "Where a testator gives a farm to his son in fee, upon condition, 
 among other things, that his daughters shall have the use and 
 occupation of a room in his dwelling-house, and be provided with 
 food, raiment and fuel as long as they remain unmarried, and 
 there be a breach of condition, it is held, that an ejectment lies 
 by the daughters for the recovery of the shares of the farm to 
 which they would have been entitled as the children of their 
 father.. Such a condition is annexed to the estate as part of the 
 tenure, and will, of course, affect the land into whatever hands it 
 may pass. {Hogeboom v. Hall, 24 Wend. E. 146.) 
 
168 LAW or MJECTMENT AND ADVERSE ENJOYMENT. 
 
 There can be no question but that an action of ejectment may 
 be maintained upon the title of a tenant for years. When land 
 was let to one for a term of yeai-s, and the tenant for years under- 
 let the premises, and in the lease to the under-lessee it was pro- 
 vided, that, if the under-lessee were guilty of a breach of the 
 covenants in the lease, the lessee and lessor might enter ; and 
 the under-lessee broke the covenants of his lease ; it was held, 
 that the first lessee was entitled to his action of ejectment. {Doe 
 V. White, 4 Bing. E. 276.) 
 
 When a conveyance of land is made to husband and wife, each 
 of the grantees holds the land in fee — not in moities, but in 
 severalty {per tout et non per my, as it is technically expressed), 
 with the right of survivorship. This is the rule in England and 
 in most of the American states. Yarious legal consequences arise 
 from such a peculiar estate. Neither the husband nor wife can, 
 in their own right, alien any part without the concurrence of the 
 other. The husband's creditors cannot take his interest in execu- 
 tion, according to high judicial authority, although it is inferable 
 from cases decided in some of the states, that the husband's right, 
 Jure uxoris, might be thus appropriated. The husband, having 
 the absolute control of the estate during life, may give a mortgage 
 
 ' of his interest, and may give a lease in his own naine for the pur- 
 pose of bringing ejectment. The estate is not of the same nature 
 as a joint-tenancy ; if it was, it has. been doubted whether one 
 could demise without the other. But the seisin in such case is not 
 in joint-tenancy either in substance or form. The survivorship 
 presents the greatest formal resemblance ; and yet, instead of put- 
 ting that on the notion of a joint-tenancy, the authorities all refer 
 to the established effect of a conveyance to husband and wife, 
 pretty much independent of any principle which govern other 
 cases. {Vide Thornton v. Thornton, 3 Rand. R. 179. Taul v. 
 Campiell, 7 Yerg. R. 319. Dow v. Ilardenburgh, 6 Halst. R. 
 42, 45. Shaw v. Ilersexj, 5 Mass. R. 521. Ross v. Garrison, 
 1 Dana's R. 35, 37, 38.) At all events, the authorities pretty 
 generally agree, that the title of the husband in such a case is 
 sufficient for him to maintain the action of ejectment dnrino' the 
 life of the wife. {Vide Jackson v. McConnell, 9. Wend. R. 175.) 
 And it is not necessary that the wife should join with the husband 
 
 : in the action. The husband is tenant for life, jure uxoris in her 
 interest, and his title, therefore, is clearly sufficient to entitle Iiim 
 
TBE claimant'' S \riTLE IN EJECTMENT. 169 
 
 to an action of ejectment. {Jackson y. Leelc, 19 "Wend. E. 339. 
 And vide Bar-her v. Harris, 15 ib. 615.) 
 
 When land is conveyed to the wife, and she has a child or 
 children by her husband,- the husband is seised, in right of his wife, 
 of a life estate, as tenant by the curtesy initiate, and the wife of 
 the ultimate fee. These two estates constitute the whole quantity 
 of interest, and entitle the parties to an ejectmeqt in the joint 
 names of the husband and wife. The general rule is, that in real 
 actions for the recovery of the land of the wife, the husband and 
 wife must join. (1 Chitty's PI. 81.) But, at common law, the 
 husband alone is entitled to the possession of his wife's land, 
 during their joint lives ; and therefore his title is sufficient to 
 entitle him to his action of ejectment in his own name. He may 
 demise such interest in his wife's land as will maintain an eject- 
 ment. {Chambers v. Handley, 3 J. J. Marsh. E. 98.) 
 . Clearly, a tenant for life, or for years, has the exclusive right of 
 possession of the land, and his title, therefore, enables, him to main- 
 tain the action of ejectment, and that whether he claim in his own 
 right or in right of his wife. Indeed, the very object of the 
 remedy by ejectment in its original conception was to enable one 
 who had a lease for years, to repair the injury done him by dis- 
 possession, and enable him to recover his term. And it seems that 
 where a tenant in tail aliens in fee, the issue in tail, after the death 
 of such tenant, may bring ejectment to recover the premises, with- 
 out an actual entry. {Den v. Robinson, 2 South. E. 689.) 
 
 II. So also, it has been suggested in a previous chapter, that 
 the title of a mortgagee of lands, after forfeiture Jay reason of 
 non-payment, is sufficient, at common law, to enable the claimant 
 to bring ejectment against the mortgagor, or other party in pos- 
 session; and it is held, in such a case, that the mortgagee may 
 immediately proceed by ejectment without any notice or demand 
 of possession. (Carroll v. JSallance, 26 111. E. 9. Doe v. Maisei/, 
 8 Barn. & Ores. E. 767. Fuller v. Wadswortk, 2 Ired. E. 263. 
 I>en V. Stoohton, 7 Ilalst. E. 322. My v. McGuire, 2 Ham. E, 
 223. Rockwell v. Bradley, 2 Conn. E. 1. Wakeman v. Banks, , 
 Ib. 445.) And ejectment lies on a mortgage payable by install- 
 ments, before all the installments become due. (Smith v. Shuler, 
 12 Serg. & Eawle's E. 240.) 
 
 "Where there is an agreement that a mortgagee may dispose of 
 the premises in case the interest is not paid annually, an action 
 22 
 
170 LAW OF EJEaTIIENT AND ADVERSE ENJOYMENT. 
 
 of ejectment will lie upon any failure to pay as agreed. {Alsop 
 V. Peck, 2 Eoot's 11. 224.) 
 
 If, after the execution of the mortgage, the mortgagor leases the 
 mortgaged lands and the lessee takes possession under his lease ; 
 and while he is thus in possession, paying rent to the mortgagor, 
 there is a forfeiture by non-payment of money due on the mortgage, 
 the action of ejectment is sustainable in favor of the mortgagee to 
 recover the lands from the tenant. {Bank v. Bates, 11 Conn. 
 K. 519.) 
 
 In the state of ISTew Jersey, it has been held that the mortgagee 
 does not divest himself of the right to maintain ejectment by 
 filing a bill to foreclose, in connection with a second mortgagee, 
 procuring an order of sale, and accenting the sheriff's deed for 
 the premises. This is upon the principle, that, if the sheriff's sale 
 is valid, the mortgagee, having become the purchaser, can recover 
 by virtue of the purchase and conveyance; and if the sale is not 
 valid, then his title still remains. {Den v. Stockton, 1 Halst. 
 E. 322.) 
 
 It seems that in ejectment upon a mortgage, the consideration 
 upon which the mortgage was given cannot be inquired into. {Doe 
 V. Roll, 7 Ham. R., part 2, 70.) And in an action of ejectment 
 on a mortgage, the court will not allow the money due upon the 
 mortgage to be paid into court, if there is a bill in equity pending 
 on the mortgage. {De7i v. Kimhle, 4 Halst. E. 335.) 
 
 The heirs of a mortgagee, or, in case of their non-residence, the 
 executor or administrator of the mortgagee, may sustain ejectment 
 for the mortgaged premises against the mortgagor, or his tenant 
 claiming under a lease granted after the mortgage, without the 
 privity of the mortgagee ; and in such case, it is held that the suit 
 may be brought without a demand of possession. {Brown v. Mace, 
 7 Blaclif E. 2.) 
 
 If, however, the party in possession is not the mortgagor him- 
 self, but a person claiming under a tenancy created by the mort- 
 gagor prior to the mortgage, the mortgagee will be bound by it, 
 and cannot eject the tenant ou the mortgage becoming forfeited. 
 {Doe V. Wharton, 3 Term E. 2. Thunder v. Belcher, 2 East's E. 
 449.) And, if the mortgagee demand from the mortgagor's tenant 
 the interest due, and receive it from him in lieu of payment of 
 rent, it will be such an admission of the lawfulness of the tenant's 
 possession, as will preclude him from maintaining ejectment on a 
 
THE CLAIMANT'S TITLE IN EJECTMENT. 171 
 
 demise anterior to such payment, although it will not amonnt to 
 an acknowledgment of a tenancy between himself and the party; 
 but the payment of interest subsequent to the day of the demise 
 by the mortgagee himself, will not operate so as to legalize his 
 tenant's possession up to that period, as against the mortgagor. 
 {Doe Y. Ilobbs, 7 Bing. E. 322. Doe v. Cadwallader, 2 Barn. & 
 Adolph. R. 473. Evans v. Elliot, 9 Adolph. & Ell. E. 299. Doe 
 V. Barton, 3 Per. & Dav. E. 194.) So, also, when the mortgagee 
 grants a lease for years subsequent to the mortgage, and the mort- 
 gagee does some act amounting to a contract that the lessee shall 
 become his tenant, he does not thereby set up the lease, but ovi\j 
 creates a tenancy from year to year. {Doe v. Bucknell, 8 Carr. & 
 Payne's E. 566.) 
 
 If the words of the conveyance creating the mortgage operate 
 as a redemise of the premises to the mortgagor until default, it 
 has been held that the mortgagor is entitled to notice or demand 
 of possession after default, before ejectment can be maintained 
 against him, but that, if the words do not so operate, he will not 
 be so entitled, although the conveyance expressly stipulates that 
 it shall be lawful for the mortgagee to enter into possession upon 
 defeult, " after giving one month's notice." ( Wheeler v. Montifore, 
 2 Queen's Bench E. 133. Doe v. Goldwin, lb. 143. Doe v. Day, 
 lb. 147.) And it has been held in one case, that, when the words 
 do not operate as a redemise, the mortgagee is entitled to possess- 
 ion before default, notwithstanding a proviso that it shall be law- 
 ful for him to enter upon and enjoy the premises after default. 
 {Doe V. Lightfoot, 8 Mees. & Welsh. E. 553.) 
 
 If the mortgagee assigns the mortgage, and his assignee assigns 
 it to another, the last assignee ma}' maintain ejectment for the 
 mortgaged premises. {Smarth v. Williams, 1 Salic. E. 245.) 
 
 If there be two several mortgages upon the same lands, the 
 mortgagee who has the legal estate will be entitled to recover in 
 an ejectment against the other mortgagee, although his mortgage 
 be posterior in point of time. {Goodtitle v. Morgan, 1 Term E. 
 Y55.) 
 
 The foregojng points and suggestions in respect to the action of 
 ejectment by the mortgagee, and his assigns, to recover the mort- 
 gaged premises, of course have no application in those states 
 which, like New York, have, by statute, forbidden the action for 
 the recovery of such premises. But. in many of the states the 
 
172 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 action may still be maintained by tlie mortgagee, his assigns or 
 representatives, for the recovery of the possession of the mortgaged 
 premises ; and hence the propriety of giving the law upon the 
 subject. 
 
 III. Under the ancient system of tenures existing in England, 
 many rules were established or recognized in respect to the action of 
 ejectment in connection with copyhold estates, and the cases in 
 which the lord of the manor was entitled to his action kgainst the 
 tenant of copyhold premises. But, as there is nothing of copy- 
 hold remaining in the United States, it would not be profitable 
 here to refer to any of the principles governing the practice in 
 such cases. Copyhold, by the English law, is a tenure for which 
 the tenant has nothing to show but the copy of the rolls made by 
 the steward of the manor, and is opposed to free socage or free- 
 hold. By the ancient practice, it was doubted whether an eject- 
 ment could, in any case, be supported by a copyholder. But, 
 since the introduction of the modern practice, it is held that 
 the common consent rule is suificient to enable a copyholder to 
 maintain the action. (Adams on Ejectment, 63.) But, as before 
 remarked, copyhold tenures are no where recognized in the Ameri- 
 can states, and it is not important, therefore, to consider the sub- 
 ject here. 
 
 IV. In some parts of England there is a custom that the widow 
 shall enjoy, during her widowhood, the whole or part of the 
 customary lands wherewith her husband died seised, as o:^ free- 
 bench : and where such is the custom, the widow may, after chal- 
 lenging her right, and praying to be admitted, maintain an eject- 
 ment for them, without admittance, even against the lord ; because 
 it is an excrescence which, by the custom and the law, grows out 
 of the estate. {Doe v. Bellamy, 3 Moore & Scott's E. 87.) The 
 nearest to any thing like this custom in the United States is the 
 title by dower; and at common law, if the widow's claims are in 
 the nature of dower, an ejectment will not lie before assignment. 
 {Doe V. Nutt, 2 Carr. & Pa. E. 430. Chapman v. Sharpe, 2 
 Show. E. 184.) But by the statutes of several of the American 
 states, the dower interest of a widow may be recovered in eject- 
 ment, and where such is the law, all the ordinary rules respecting 
 the action apply to the remedy for dower. When the action is 
 proper to recover the estate in the nature of dower, will be ascer- 
 tained, by i-eference to the chapters in this work explaining the 
 
THE claimant'' S TITLE IN EJECTMENT. 173 
 
 things for which the action of ejectment will lie by the statutes of 
 the several states. 
 
 V. The title of a guardian in socage is sufficient to sustain the 
 action of ejectment. {Wade v. Cole, Ld. Rayin. R. 130.) The 
 abolition of tenures in the United States has destroyed guardian- 
 ships in socage. Indeed there can be no guardians in socage here, 
 in the strict sense of the term, for the reason that such a guardian- 
 ship only belongs to the next of kin, who cannot, by possibility, 
 inherit the estate ; while under the statute of descents generally 
 in force in this country, all the children are heirs apparent of the 
 father. There may be a few cases, however, where lands granted 
 before the revolution descend to the children ou the part of the 
 maternal relatives, and in such cases, lands thus acquired cannot 
 go to the father; so that, in relation to socage lands of that descrip- 
 tion, he may perhaps be the guardian in socage, and as such he 
 may maintain ejectment for the lands of his ward. But, although 
 the abolition of tenures in this country has destroyed guardian- 
 ships in socage, statutes usually exist, providing forithe conferring 
 of the guardianship of infants, with the rights, powers and duties 
 of a guardian in socage, upon certain persons specified in the 
 statute ; and guardians of this description may also bring the 
 action of ejectment to recover the lands of their wards. {Holmes 
 V. Seeley, 17 "Wend. R. 75. Combs v. Jackson, 2 ib. 153.) 
 
 But a guardian for nurture cannot maintain ejectment, for he 
 cannot makes leases for years, either in his own name or in the 
 name of the infant ; because he has only the care of the person 
 and education of the infant, and has nothing to do with the lands 
 merelj'' in virtue of his office. {Ratdiff''s Case, 3 Coke's R. 37. 
 Tide Tefft v. MoOill, 3 Barr's R. 256.) 
 
 When there is no guardian in socage, the father is guardian by 
 nature until the child arrives at the age of twenty-one ; but this, 
 too, is a guardianship of the person only, and gives no right or 
 control over the child's property, real or personal. A guardian 
 by n#ture, therefore, cannot bring the action of ejectment to 
 recover the lands of his ward, unless, as is sometimes the case, 
 where the child has lands, the statute makes the father the guar- 
 dian of the child, with the right, power and duties of a guardian 
 in socage. ( Yide Conibs v, Jackson, supra. Fonda v. Van Home, 
 15 Wend. R. 631.) 
 
174 LAW OF EJSCTME^tT AND ADVERSE ENJOYMENT. 
 
 The general guardian of a minor has control of the lands of his 
 ward, and may lease the same during his guardianship. Of course, 
 therefore, a general guardian may maintain the action of eject- 
 ment to recover the lands of his ward. 
 
 It is difficult to discover upon what principle both the infant 
 and guardian can have the right of maintaining ejectment for the 
 same lands, notwithstanding they do possess that right. As is 
 above shown, the guardian may have ejectment for the land of his 
 ward, and it is quite common for the infant himself ip bring the 
 action in his own name by a guardian ad litem to recover the pos- 
 session of his lands. * 
 
 VI. By the operation of the bankrupt and insolvent acts, which 
 quite generally exist, all the real and personal property of the 
 bankrupt or insolvent, both present and future, vests in the official 
 assignee by the mere eifect of the appointment. It would seem,,* 
 therefore, that the title of the assignee of a bankrupt or insolvent 
 debtor was sufficient Jo enable him to maintain the action of eject- 
 ment. Indeed, this has been expressly held in respect . to the 
 assignees of a bankrupt under some of the bankrupt acts which 
 have been passed. {Barstow v. Adams, 2 Day's K. 70. Den v. 
 Spencer, 2 Carr. & Pa. R. 79. Boe v. Land, 3 Dowl. & Eyl. E. 
 509. Doe V. Abrahams, 1 Starkie's E. 305.) But although the 
 assignment of an insolvent debtor passes the legal estate in his 
 lands to the assignee, yet a trust results by operation of law, 
 which, as soon as the debts are satisfied, entitles him to the 
 possession against his assignees, et a multo fortiori, against a 
 stranger against whom he may maintain an ejectment in his own 
 name. {Ross v. McJunhin, 12 Serg. & Eawle's E. 364.) 
 
 Under the English acts, a difference prevails between cases of 
 bankruptcy and insolvency, where the party is possessed of a term 
 of years. In the former case, tlie term does not pass by the assign- 
 ment of the commissioners to the assignees, unless they elect to 
 accept it ; and if they decline to accept, the term will remain in 
 the bankrupt, as though no commission had issued, uukss he 
 deliver up the lease within fourteen days to the lessor, and he may 
 maintain ejectment, if ousted, notwithstanding his bankruptcj'. 
 But in the case of an insolvent debtor, the term rests absolutely 
 in the provisional assignee by the assignment to him ; and if the 
 assignee subsequently appointed should elect not to accept the 
 term, it will not revert to the insolvent, but the lessor must make 
 
TBE claimant'' S TITLE IN EJECTMENT. 175 
 
 the application to the insolvent court, who have power to mate 
 such order therein as they deem just. (Adams on Eject. 68, 69. 
 Doe V. Andrews, 4 Bing. E. 348. Doe v. Spencer, 3 ib. 203, 370. 
 Copeland v. Stephens, 1 Barn. & Adolph. R. 597. Crofts v. Pick, 
 8 Moore's E. 384. Lindsay v. Limburt, 2 Carr. & Pa. E. 326.) 
 
 VII. In the reign of Edward the First, of England, much was 
 done to settle and establish distributive justice in the kingdom ; 
 and, among other things, a process was instituted for the security 
 of debts, by charging landed property, by what was called the 
 statute merchant. And again, in the reign of Edward the Third, 
 another process was established for a similar purpose, called the 
 statute staple. Both the statute merchant and the statute staple 
 I were securities for debts acknowledged to be due, whereby not 
 only the body of the debtor might be imprisoned, and his goods 
 seized in satisfaction of the debt, but also his lands might be 
 delivered to thev creditor, till, out of the rents and profits of them, 
 he might be satisfied ; and, during such time as the creditor so 
 held the lands, he was called tenant by statute merchant or statute 
 staple. The party plaintiff in the proceedings, to whom the other 
 party's acknowledgment of his right to the land in question was 
 made, was also called cognizor or conusee. 
 
 The cognizor or conusee of a statute merchant or staple, could 
 maintain ejectment for the lands charged for the debt. But as 
 there is probably no such estate recognized in the American states 
 as that of the statute merchant or statute staple, nothing more 
 need be said upon the subject. 
 
 YIII. Edward the First, who was justly styled the English Jus- 
 tinian, also instituted a speedier way for the recovery ^f debts 
 than theretofore existed, by granting execution, not only upon 
 goods and chattels, but also upon lands, by writ of elegit. B^ the 
 common law a man could only have satisfaction of goods, chattels 
 and the present profits of lands, by what was called a writ of 
 fieri facias, or levari facias ; but not the possession of the lands 
 themselves ; which was a natural consequence of the foedal prin- 
 ciples, which prohibited the ali^ation, and, of course, the incum- 
 bering of the fief with the debts of the owner. The statute, 
 therefore, granted this writ, called an elegit (because it was in the 
 choice or election of the plaintiff whether he would sue out this 
 writ or the writ oi fieri facias, or levari facias), by which the 
 defendant's good^ and chattels were not sold, but only appraised ; 
 
176 LAW OF EJECTMENT AND' ADVERSE ENJOYMENT. 
 
 and all of tliem, with certain exceptions, were delivered to the 
 plaintiff, at such reasonable appraisement and price, in part satis- 
 faction of his debt. If the goods were not sufficient, then the 
 moiety or one-half of the freehold lands of the debtor, which he 
 had at the time of the judgment given, whether held in his own 
 name or by any other trust for him, were also delivered to the 
 plaintiff, for him to hold, until ont of the rents and profits thereof 
 the debt to be levied, or until the defendant's interest in the land 
 expired ; or until the death of the defendant, if he was a tenant 
 for life or in tail. During this period the plaintiff was called 
 tenant by elegit. (3 Black. Com. 418, 419.) All this proceeding 
 is here described as in the past, because it is not quite certain that 
 there is any thing like it in the United States, or perhaps even in 
 England, at the present time. It is probable, however, that the 
 process is still extant in England in some form ; and there may be 
 special cases in the United States where a similar estate in lands 
 now exists. Such an estate was certainly recognized in the state 
 of Virginia as late as 1818. ( Vide Ronald v. Barldey, 1 Brock. 
 Marsh. K. 356.) 
 
 It has been held in some cases, that if a tenant by elegit desires 
 to obtain actual possession of the lands, he must bring ejectment, 
 for the reason that the sheriff, under the writ, delivers only the 
 legal possession. {Lowthe v. Tomkins, 2Eq. Ca. Ab. 380. Taylor 
 v. Cole, 3 Term E. 295.) But Chief Justice Gibbs seems to have 
 held a contrary opinion, saying : " There is no case in which a 
 party may maintain ejectment in which he cannot enter. The 
 ejectment supposes that he has entered ; and that the lessor may 
 do it by another, and not enter himself, is not very intelligible. I 
 would not, however, consider the present case as now deciding 
 the^ points, which I only throw out in answer to the argument 
 that has been used." {Rodgers v. Pitcher, 6 Taunt. R. 202.) But, 
 M'iiatever may be said of these cases, doubtless the estate of a 
 tenant by elegit is sufficient to maintain the action of ejectment. 
 ( Vide Hughes v. Lumley, 4 Ellis & Blackburn's E. 274.) 
 
 "Where a tenant in, possession* claimed under a lease granted 
 prior to the date of the judgment against his lessor, it was held 
 that the tenant by elegit could not recover in ejectment, for the 
 very simple reason that the title of the lessee being prior in point 
 of time, the legal estate was in him. {Boe v. Wliarton, 8 Term 
 E. 2.) But, when the possession of the tenant was subsequent to 
 
TSE CLAIMANT'S TITLE IN EJECTMENT. 177 
 
 the date of the judgment, although prioi* by two years to the 
 issuing of the writ of elegit and inquisition tliereon, the title of 
 the tenant by elegit was not barred. {Doe v. Hilder, 2 Barn. & 
 Adolph. R. 782.) If, however, the tenant does not himself claim 
 this protection, but suffers judgment by default, it will not avail 
 the judgment debtor, though he may appear as landlord and 
 defend the action. {Doe v. Greed, 2 Moore & Payne's R. 648.) 
 
 Estates by elegit, as well as by statute merchant and statute 
 staple, are not known in practice in the United States. In this 
 country, lands are generally liable for the payment of debts, but 
 they are reached by a diiferent process. Here, the fieri facias, 
 by whatever name it may be called, is the uniform process upon 
 which lands are sold to satisfy a judgment. The execution is 
 issued to the sherifl' of the county in which the land to be reached 
 lies, and in which the judgment was docketed, requiring him to 
 make the amount of the judgment out of tlie personal property 
 of the defendant, and if sufficient personal property cannot be 
 found, then to make it out of the real estate belonging to the 
 defendant at the time such judgment was docketed in said county; 
 whereupon such real estate is advertised and sold by the sheriff, at 
 public auction, to the highest biddei*, and, if the land is not 
 redeemed within a specified time, the purchaser receives the 
 sheriff's deed for the land, and he becomes vested with all the title 
 that the defendant had in the land at the time the judgment was 
 docketed against him. In these cases the statutes usually pro- 
 vide a summary proceeding for the purpose of recovering the pos- 
 session of the land sold, after the title has been perfected under 
 the sale; but in every case, if the defendant in tlie execution had 
 such a title as would justify an ejectment, and his estate was of 
 that nature that it could be sold on execution, the purchaser may 
 maintain ejectment to recover possession. 
 
 In cases of a purchase at sheriff's sale, in order to recover in 
 ejectment, it must appear that there was a seisin upon which the 
 judgment attached. Where the defendant in the execution is the 
 possessor, it is, of itself, sufficient evidence of a legal title. He 
 cannot show title in another, for the plaintiff comes into exactly 
 such estate as the debtor had ; and if it was a tenancy, the plaintiff 
 will be a tenant also, and estopped in a suit by the landlord, from 
 disputing his right, in the same manner as the original tenant. If 
 the defendant in the execution was not in possession of the land at 
 23 
 
178 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the time the lien of the judgment attached, the plaintiff nmst show, 
 as against the party in possession, that the party against whom the 
 judgment was rendered ha>d some right, title or interest in the 
 premises sold, and of such a nature as would be the subject of the 
 judgment lien. {Jackson v. Tower, 4 Cow. R. 599. Vide Jackson 
 V. Jones, 9 ib. 182.) But what will be proper evidence for the 
 plaintiff, in such a case, will be given in another place. 
 
 IX. "Where the testator, or intestate, dies possessed of real property 
 for a term of years, his personal representatives may bring eject- 
 ment to recover the land ; and in such a case it is immaterial 
 whether the ouster be after or before the death of the testator, or 
 intestate. {Doe v. Porter, 3 Term R. 13. Blade's Case, 4 Coke's 
 E. 72, 75, a.) But the right of the'persoual representatives of the 
 deceased to bring ejectment is generally confined to those lands 
 which the testator, or intestate, held for a term of years. There 
 was, however, formerly a statute in England, which may be in 
 force at the present time, which appropriated certain estates held 
 pur autre vie, where there was no special occupant, and authorized 
 the personal representatives of the deceased tenant to recover such 
 lands in ejectment. {Zouck v. ^orse, 7 ^asfs'R. 106.) And there 
 may be statutes existing in some of the American states, which 
 authorize the personal representatives of the deceased to recover in 
 ejectment real property held .by the testator, or intestate, other than 
 for a term of y6ars, or during the life of another ; but usually these 
 latter estates are the only ones which can be recorered by the 
 personal representatives of the deceased. It is most unquestionable 
 that an executor or administrator, as such, may maintain eject- 
 ment for lands held by the testator or intestate for a term of years. 
 {Duchane v. Goodtitle, 1 Blackf R. 117.) 
 
 X. "Where a freehold interest in lands is devised, the devisee may 
 immediately, and without anj' possession, maintain ejectment for 
 the lands devised ; but if it be a legacy of a term of years, he must 
 first obtain the assent of the executors to the bequest. ( Young v. 
 Holmes, 1 Strange's R. 70.) "Where, however, such assent is 
 obtained, the le'gal estate vests absolutely in the legatee, and he may 
 maintain ejectment against the executor, as well as against a 
 stranger. {Doe v. Guy, 3 East's R. 120.) 
 
 "Where lands are devised to an executor, the executor holds the 
 property as devisee. In such case he derives his title from the will, 
 and his letters testamentary do not give him the title. He may 
 
THE CLAniANT^S TITLE IN EJECTMENT. 179 
 
 bring ejectment to recover the lands devised to him, as devisee, 
 entirely independent of his appointment as executor. {Doe v. 
 McFarland, 9 Cranch's E. 151.) 
 
 In the statement that the devisee may have his action for the 
 lands devised, it is assumed that no action of the court is neces- 
 sary in ordering a division, or assigning the land, and that the 
 executor has no lien on the land for any purpose whatever, or if he 
 had, BO long a time had elapsed that his lien will be presumed 
 satisfied. {Ahlott v. Pratt, 16 Vt. E. 626. Vide also Green v. 
 Chelsea, 23 Pick. E. Yl.) 
 
 XI. The grantee of a rent-charge has power to enter upon the 
 lands, if the rent be in arrear, and hold them until satisfaction, His 
 title is, therefore, sufficient to maintain the action of ejectment. 
 (Jemott V. Cowley, 1 Saund. E. 112. Galbraith v. Fenton, 2 Serg. 
 & Eawle's E. 359. But vide Ganse v. Wiley, 4 ib. 509.) But, 
 before the gi-antee of a-i'ent- charge can enter for the non-payment 
 of rent, he must make the proper demand of the amount due ; and 
 until this is done he cannot bring ejectment. {McCormick v. Con- 
 nell, 6 Serg. & Eawle's E. 507.) And it is held, that these rights 
 of entry are to be taken strictly ; accordingly, when a man gave a 
 leasehold estate by will to B, his executors, etc., subject to a rent- 
 charge to his wife during widowhood, with a power to the widow 
 to enter for non-payment of rent, and to enjoy, etc., until the 
 arrears were satisfied, and, in case of the widow's marriage, he 
 willed that B should pay the rent-charge to 0, his executors, 
 administrators and assigns, — it was held, that C's executors, after 
 the widow's marriage, and C's subsequent death, had no right of 
 entry for non-payment of the rent-charge. {Hassell v. GowtJmaite, 
 Willes' E. 500.) 
 
 The assignee of a lease, absolute in its terms, taking,' with the 
 assignment of the lease, a writing from the assignor, agreeing to 
 surrender the premises on a certain day, in consideration of which 
 he agreed to pay a specified sum of money, may maintain eject 
 ment against the assignor for the premises, on his refusal to sur- 
 render according to contract, without having made the stipulated 
 payment. {Strong v. Garfield, 10 Vt. E. 497.) 
 
 When lands are conveyed with certain conditions imposed, and 
 the grantor reserves the right to re-enter for condition broken, on 
 the failure of the grantee, his heirs or assigns, to comply with these 
 conditions, the original or immediate grantor, or his heirs, may 
 
180 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 maintain ejectment to regain possession. Bj the common law, no 
 one could take advantage of a condition or covenant but the 
 grantor, or his heirs ; a principle consistent with the old fendal 
 maxims, but highly injurious to the rights of grantees, when the 
 practice of alienating estates became general, and leases for years a 
 valuable possession. Conditions in a deed can only be reserved for 
 the grantor and his heirs. A- stranger cannot take advantage of 
 the breach of them. And the reason for this well-settled rule 
 of the common law is, that the estate is not defeated, although the 
 condition be broken, until entry by the grantor or his heirs, and 
 " nothing which lies in action, entry or re-entry can be granted 
 over, in order to discourage maintenances." Before the breach, 
 there is nothing in the grantor to assign ; and the right of entry, 
 after breach, is, at common law, incapable of assignment. "When, 
 therefore, a grant in fee has been made, depending upon a condi- 
 tion subsequent, no one can re-enter on breach of the condition, 
 except the grantor or his assigns. A conveyance made by the 
 grantor to a third person, either before or after breach of the con- 
 dition, will not carry with it a right to re-enter for condition 
 broken. Hence, therefore, no one but the immediate grantor, or 
 his heirs, can maintain ejectment to regain possession upon a right 
 of re-entry for condition broken. {Nicoll v. The New Yorh and 
 Erie Railroad Company, 12 N. Y. E. 121.) On a covenant for 
 the grantor to enter on condition broken, his heir, after the death 
 of his ancestor, may avail himself of the covenant, although not 
 expressly named, and can therefore bring ejectment for the prem- 
 ises forfeited. {Jackson v. To-pping, 1 Wend. R. 388.) J 
 
 To remedy what was regarded as an evil of the common-law 
 doctrine, that no one could take advantage of a condition or cov- 
 enant in a conveyance but the immediate grantee or his heirs, an 
 act was passed in England, in the reign of Henry the Eighth, 
 enacting, that- the grantees or assignees of a reversion-shall have the 
 same rights and advantages, with respect to the forfeitures of 
 estates, as the heirs of individuals, and the successors of corpora- 
 tions, had until that time solely enjoyed ; and this statute, or one 
 similar in its provisions, is still believed to be in force in that king- 
 dom. Many of the American states, also, have statutes extending 
 or modifying the common-law rule in this regard. Under a statute 
 like that of Henry the Eighth, of course, the assignee of the 
 reversioner may maintain ejectment upon a right of re-entry for 
 
THE CLAIMANT'S TITLE IN EJECTMENT. 181 
 
 condition broken ; and, under the English statute, it has been 
 held, that the assignee may take advantage of conditions for keep- 
 ing houses in repair, for making of fences, scouring of ditches, 
 preserving of woods, and the like ; but not of collateral condi- 
 tions, as for the payment of a sum in gross, or for the delivery of 
 corn, or wood, or such like. {Spencer's Case, 5 Coke's E. 16.) 
 
 As there are, doubtless, statutes existing in some of the states, 
 similar to those of Henry VIII, it maybe well to note a few points 
 which have been settled by the courts, in cases arising under that 
 statute. 
 
 Where a lessee covenants for himself, his executors and admin- 
 istrators, that he would build a wall upon part of the demised 
 premises, the court held that the assignee was not bound by this 
 covenant, for the reason that the wall was not in esse at the time 
 of the demise made, but to be newly built afterward. It was 
 resolved, however, that if the lessee had covenanted for himself 
 and his assigns, expressly, his covenant would have bound the 
 assignee, notwithstanding the wall was not in esse, inasmuch as 
 what was covenanted to be done, was to be done on the land 
 demised. {Spencer's Case, supra. And vide Bally v. Wells, 3 
 "Wils. R. 25.) But it has been expressly held that if the matter 
 covenanted to be done does not, in any manner, touch or concern 
 the thing demised ; for example, to build a wall or other line, or 
 pay a collateral sum to the lessor, the as^gnee, though named, 
 will not be bound. {Yernon v. Smith, 5 Bam. & Aid. R. 1.) 
 
 It has been held that a covenant in a lease of land, that the 
 lessee or his assigns will not hire persons to work on the demised . 
 premises who are settled in other parishes, is a collateral covenant, 
 and does not bind the assignee, although expressly named ; for it 
 does not, in any way, afi'ect the thing demised, although it may 
 collaterally affect the lessee by increasing the poor rates upon him. 
 In respect to this case, Lord Ellenborough, Ch. J., said : " This is 
 a covenant in which the assignee is specifically named ; and 
 though it were for a thing not in esse at the time, yet, being 
 specifically named, it would bind him, if it affected the nature, 
 quality, or value of the thing demised, independently of collateral 
 circumstances, ; or if it affected the mode of enjoying it. But this 
 covenant does not affect the thing demised, in the one way or the 
 otlier. It may, indeed, collaterally affect the lessors, as to otlier 
 lands they may have in possession in the same parish, by increas- 
 
182 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ing the poor's rate upon them ; but it cannot aflfect them even 
 collaterally, in respect of the demised premises during the term." 
 
 And Bayley, J., said: " I agree that it is not material to con- 
 sider how soon the act done, which was covenanted not to be done, 
 may affect the land ; but, in order to bind the assignee, the covenant 
 must either affect the land itself during the term, such as those 
 wliich regard the mode of occupation ; or it must be such as per 
 se, and not merely from collateral circumstances, affects the value 
 of the land at the end of the term." {The Mayor of Coughton v. 
 Pattison, 10 East's E. 130.) 
 
 A covenant to supply the demised premises with good water 
 durino; the term runs with the land, for it is a covenant which 
 respects the premises demised, and the manner of enjoyment. On 
 failure of the lessee to perform this covenant, therefore, the lessor, 
 or his assignee, may bring ejectment, and recover the possession 
 of the land demised. {Jourdan v. Wilson, 4 Barn. & Aid. K. 
 266.) So also a covenant to insure against fire, premises situated 
 within the weekly bills of mortality, mentioned in a statute, one 
 section of wliich enables the landlord, by application to the direct- 
 ors of the insurance ofiice, to have the sum insured laid out in 
 rebuilding the premises, is a covenant that runs with the land, for 
 the reason that this may be regarded as a covenant to lay ont a 
 given sum of money in rebuilding or repairing premises in case of 
 damage by fire. And Best, J., was of the opinion that if the 
 premises had not been within the limits of the act, it would not 
 have varied the case, heoause the original covenantee could not 
 amail himself of the covenant, inasmuch as, after the assignment, 
 he sustains no loss by the destruction of the buildings; and a 
 " covenant in a lease, which the covenantee cannot, after his assign- 
 ment, take advantage of, and which is beneficial to the assignee as 
 such, will go with the estate assigned ; " and he defines collateral 
 covenants to be such covenants as are beneficial to the lessor, 
 without regard to his continuing the owner of the estate ; but the 
 judgments of the other judges seem to have proceeded entirely 
 on the ground of the locality of the premises. ( Vernon v. Smith, 
 6 Barn. & Aid. K. 1.) 
 
 "When one seised of a mill and certain lands granted a lease of 
 the latter, for years, the lessee yielding and paying to the lessor, his 
 heirs and assigns, certain rents, and doing suit to the mill of tho 
 lessor, his heirs and assigns, by grinding all such com there as 
 
TBE CLATMANT^S TITLE IN EJECTMENT. 183 
 
 should grow upon the demised premises ; this reservation of the 
 suit to the mill was held to be in the nature of a rent, and the 
 implied covenant to render it, resulting from the reddetidum, was 
 decided to be a covenant that runs with the land, so long as the 
 ownership of the mill and the demised premises ielong to the same 
 person. ( Vivyan v. Arthur, 1 Barn. & Ores. E. 410.) But a 
 condition that a lessee shall not assign over his term, without 
 license from the lessor, is held to be a collateral condition ; and 
 cannot be taken advantage of by the assignee of the lessor. {Lucas 
 V. How, Sir T. Eaym. E. 250. Collins v. Silley, 1 Stiles' E. 265, 
 Pennant's Case, 3 Coke's E. 64.) 
 
 The assignee of part of the reversion in all the lands demised 
 is held to be an assignee within the English statute, but the 
 assignee of the reversion in part of the lands is not ; for the con- 
 dition being entire, cannot be apportioned by the act of the par- 
 ties, but shall be destroyed. If, therefore, A be lessee for years of 
 three acres, with condition of re-entry, and the reversion of all the 
 three acres are granted to B, for life, or for years, B can take 
 advantage of the breach of condition. . But it seems that if a 
 reversion of any nature whatsoever, even in fee, of two acres onlj-, 
 be granted to B, he cannot avail himself of the breach of the con- 
 dition, and bring ejectment. (Co. Litt. 215, a.) 
 
 A cestui que use and bargainer of the reversion are held to be 
 within the statute, because they are assignees by act of the party; 
 but it seems that the rule does not extend to persons coming in 
 by act of the law, as the lord by escheat ; nor to an assignee by 
 estoppel only; nor to one who is in of another's estate; and, 
 therefore, if the reversion expectant on the determination of the 
 term be merged in the reversion in fee, the reversion is no longer 
 within the statute. {Awder v. Ifolces, 1 Moor's E. 419. Threr 
 V. Barton, lb. 94. Chaworth v. Phillips, lb. 876. Webb v. Rus- 
 sell, 3 Term E. 393, 401.) 
 
 It is held that the English statute does not extend to gifts in 
 tail ; but it has been decided that copyhold lands are within its 
 provisions. {Glover v. Cope, Carthew's E. 205.) 
 
 By the statutes of the state of New York, it is provided that the 
 grantees of any demised lands, tenements, rents or other heredita- 
 ments, or of the reversion thereof, the assignees of the lessor of 
 any demise, and the heirs and personal representatives of the lessor, 
 grantee or assignee, shall have the same remedies by entry, dction, 
 
184 LAW OF SJECTMENT AND ADVERSE ENJOYMENT 
 
 distress or otherwise, for the non-performance of any agreement 
 contained in the lease so assigned, or for the recovery of any rent, 
 or for the doing of any waste or other cause of forfeiture, as their 
 grantor or lessor had, or might have had if such reversion had 
 remained in such lessor or grantor. (1 Stat, at Large, 698, § 23.) 
 
 In a case of covenant arising under the New York statute, 
 Bronson, J., said : "Between lessor and lessee there is privity, 
 both of estate and contract. The sarne relation also exists between 
 the lessee and the assignee of the reversion ; and the latter may 
 sue in his own name upon all such covenants of the lessee, whether 
 in law or in deed, as run with the land. As to implied covenants, 
 his right to sue stands on the privity of estate, and was complete 
 at common law. He might bring debt for the rent reserved by 
 the lease, the rent being incident to the reversion. But as to 
 express covenants and conditions contained in the lease, the right 
 of the assignee to sue in his own name was given by the statute 32 
 Henry VIII, ch. 34, which we have re-enacted (2 E. S. 747, §§ 23, 24), 
 and which transfers the privity of contract, so that the assignee 
 stands in the same plight, in relation to the tenant, that the lessor 
 did before lie parted with the reversion." {Willard^. Tollman, 
 2 Hill's E. 274, 276.) It will be noted that the statute of 32 Henry 
 Vin, ch. 34, is the English statute hereinbefore given, so that the 
 decisions of the English courts under that statute may be appli- 
 cable to the statute of New York. 
 
 It has been held, that where premises demised or granted, reserv- 
 ing rent, with a clause of re-entry, are held in separate parcels by 
 different persons, under the lessee or grantee, the landlord may 
 re-enter upon and bring ejectment for any separate parcel of the 
 premises, against the party holding such parcel. The assignee of 
 the lessor or grantor, in a case arising since the statute, would, of 
 course, have the same right of action as the original lessor or 
 grantor would have had but for the ejectment. ( Vam, Rensselaer 
 V. Jewett, 5 Denio's E. 121.) As somewhat pertinent to this posi- 
 tion, it may be said that the late court of chancery of the state of 
 New York held, that where a covenant running with the land is 
 divisible in its nature, if the entire interest in different parcels of 
 the land passes by assignment to separate individuals, the covenant 
 will attach upon each parcel pro tanto ; and that the assignee of 
 each part will be answerable for his proportion of any charge upon 
 the land which was a common burden upon the whole, and will 
 
THE CLAIMANT'S TITLE IN EJECTMENT. 185 
 
 be exclusively liable for the breach of any covenant which related 
 to that part alone. {Astor v. Miller, 2 Paige's Ch. E. 68.) 
 
 It has been declared, in a case in the New York court of appeals, 
 that a right of -re-entry for non-payment of rent, or non-perform- 
 ance of any other condition, is not a reversion or possibility of 
 reversion. It is not an estate in the land, but a right of action, 
 and if enforced, the person entering would he in by a forfeiture 
 of condition, and not by reverter. It was held, therefore, that 
 when lands are leased iw /ee, whatever conditions the lease may 
 contain, the lessor has no reversion or possibiliiy of reversion, and 
 cannot impose restraints upon the power of alienation by the lessee. 
 {De Peyster v. Michael, 6 N. Y. E. 467.) 
 
 And in a still later case, the same court held, that where, by 
 a conveyance to a railroad corporation, land was granted upon the 
 condition that it should construct its road thereon within a limited 
 time, was a condition subsequent, and that the title to land vested 
 in the corporation, on the execution of the deed. That a mere 
 failure to perforin such a condition does not divest the title. 
 There must be an entry, or what is equivalent thereto by the 
 statute, by the grantor or his heirs, for a breach of the condition, 
 to forfeit the estate ; and accordingly, when the grantor of prem- 
 ises on condition subsequent, afterward conveyed the same to a 
 third person, and there was subsequently a breach, the court held 
 that the latter could not divest the title of the grantee on condi- 
 tion. {Nicoll V. The New Yorh and Erie Railroad Company, 12 
 N. Y. E. 121.) 
 
 CHAPTEE X. 
 
 THE NATTJEE OF THE TTILE OF THE CLAIMANT IN AN ACTION OF EJECT- 
 MENT THE ETJLE IN PARTICULAE CASES. 
 
 The word " title," as used in this chapjer, will have the same 
 signification as in the chapter previous. The cases considered, 
 however, are those of less frequent occurrence, or those involving 
 principles and rules peculiar to themselves; and' may, therefore, 
 be regarded as particular. 
 24 
 
186 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 I. In respect to a corporation aggregate or sole, it was formerly 
 doubted whether an ejectment could be maintained by the king, 
 because an ejectment is for an injury done to the possession, and 
 the king cannot be put out of possession. But this reasoning only 
 applies to a case where the king is made plaintiff, and not where 
 he is the lessor of the plaintiff; for it is the lessee, and not the 
 lessor, who by the legal fiction is supposed to be ousted ; and it is 
 held, that where the possession is not actually in the king, but in 
 lease to another, then, if a stranger enter on the lessee, he gains 
 possession without taking the reversion out of the crown, and may 
 have his ejectment to recover the possession, if he be afterward 
 ousted ; because there is a possession in pais, and not in tlie king, 
 and that possession is not privileged by prerogative. Hence it 
 follows, that the Mug's lessee may likewise have an ejectment to 
 punish the trespasser, and to recover the possession which was 
 taken from him. {Payne^s Case, 2 Leon. E. 205. Lee v. Norris, 
 Cro. Eliz. 331.) 
 
 In cases included within the provisions of the^ statutes 8 Henry 
 VI, ch. 16, and 18 Henry VI, eh. 6, which prohibit the granting 
 to farm of lands seised into the king's hands, upon inquest before 
 escheators, until such inquest be returned in the chancery or 
 exchequer, and for a month afterward, if the king's title in the 
 same be not found of record, unless to the party grieved who shall 
 have tendered his traverse to such inquest ; and avoid all grants 
 made contrary thereto ; the king cannot maintain ejectment for 
 lands escheated upon the death of the tenant last seised, without 
 heirs, when no immediate tenure. of the crown was found by the 
 inqnest. Neither can the crown in such a case grant such lands 
 to a stranger without office, and therefore the claimant in eject- 
 ment in such case cannot recover upon the demise of the crown. 
 And it seems to be a question, whether, at common law, upon the 
 death of the tenant last seised of the land, without heirs, the right 
 and. possession must be presumed to be immediately in the crown 
 without office, as though the person last seised were the king's 
 immediate tenant ; the king's title not appearing by any matter of 
 record, and the possession not having been vacant from the death 
 of the tenant last seised. But the cases which seem to sanction 
 grants from the crown, where there has been no office, are at least 
 consistent with the notion, that an otiSce is essential to make the 
 grant valid in the case of an esche.at where no tenure of the crown 
 
TEE CLAIMANT'S TITLE IN EJECTMENT. 187 
 
 is found, if they do not furnish ground for such a doctrine. {Doe 
 V. Eedfern, 12 East's E. 96.) 
 
 In the American states, tlie people of the state, in their sove- 
 reignty, are deemed to possess the original and ultimate property 
 in and to all lands within the jurisdiction of the state ; and the 
 people, therefore, may maintain ejectment to recover the possession 
 of such lands in all cases where the title of the state has not been 
 granted or lost by the state. And in an action brought in the 
 name of the people to recover the possession of real estate, it is 
 sufficient, in the first instance, to entitle them to recover, to show 
 that the premises are vacant and uninclosed. Provided, always, 
 that there is no statute existing in the state adopting a different 
 rule. ( Vide Wardell v. Jackson, 8 Wend. E. 183. The People v. 
 Denison, 17 ib. 312. The People v. Van Rensselaer, 8 Barb. E. 
 189. The People v. Livingston, Ib. 253.) That a state is a 
 corporation cannot be doubted. It is a legal being, capable of 
 transacting some kinds of business like a natural person, and such 
 a being is a corporation. It has been expressly held that a state 
 may be the payee of a promissory note, and may sue in its cor- 
 porate name in the courts. {The State of Indiana v. TFi??'am, 
 6 Hill's E. 33. The People v. Assessors of Watertown, 1 ib. 620.) 
 
 A corporation aggregate is a collection of individuals united in 
 one body, under such a grant of privileges as secures a succession 
 of members without changing the identity of the body, and con- 
 stitutes the members for the time being one artificial person, or 
 legal being. Such a body must, of course, possess ample powers 
 to hold and protect real property, and the same title which would 
 be sufficient, in the action of ejectment, in the name of a natural 
 person, will be sufficient where the claimant is a corporation 
 aggregate. 
 
 These aggregate corporations are civil or eleemosynary, spiritual 
 or lay. Eleemosynary corporations are such as are constituted for 
 the perpetual distribution of the free alms and bounty of the 
 founder, in such manner as he has directed ; and in this class are 
 ranked hospitals for the relief of poor and impotent persons, and 
 colleges for the promotion of learning and piety, and the support 
 of persons engaged in literary pursuits. There is a distinction 
 between proper aggregate corporations and the inhabitants of any 
 district who are by statute invested with particular power with- 
 out their consent. These are called quasi corporations, such as 
 
188 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 counties, towns, parishes, school districts, and the like ; but all 
 such corporations and qiiasi corporations have powers alike to pro- 
 tect or recover their property by action. 
 
 In several of the states, as Maine, Massachusetts and Michigan, 
 the.re is an express provision of tlie statute, that any minister or 
 other sole corporation may bring ejectment to recover the lands 
 of such sole corporation, and tlie title in such cases must be of the 
 same nature as will be sufficient in other cases, although the pro- 
 ceedings in the action, in some instances, may be somewhat differ- 
 ent. Corporations sole consist of one person only and his successors, 
 in some particular station, who are incorporated by law, in order 
 to give them some legal capacities and advantages, particularly 
 that of perpetuity, which in their natural persons they could not 
 have had. The necessity, or at least uso', of this institution, is 
 very apparent, when we consider the case of a parson of a church. 
 At the original endowment of parish churches in England, and in 
 many of the states, especially the New England states, the free- 
 hold of the church, the church-yard, the parsonage house, the 
 glebe and the tithes of the parish were vested in the then parson 
 by the bounty of the donor, as a tempoi-al recompense to him for 
 his spiritual care of the inhabitants, and with the intent that the 
 same emoluments should ever afterward continue as a recompense 
 for the same care. As a general thing, the rights of a corporation 
 sole are qualified and defined by law, and the authority of such 
 corporation to protect their property is usually co-extensive with 
 that of natural persons. Such corporations have no other powers 
 than such as are specifically granted, or are necessary to carry into 
 effect the powers expressly granted, but these are always adequate 
 for the objects contemplated. They may become seised of real' 
 property for the purposes of their incorporation, and therefore they 
 may bring all actions necessary to recover or protect the same. 
 And it may be added, that, as a general thing, where the word 
 person is used in a statute, the same extends to a corporation as 
 well as to a natural person ; in those cases, therefore, when a 
 statute authorizes a person to maintain ejectment for the recovery 
 of real property, a corporation sole would possess the same right. 
 
 II. Another class entitled to bring ejectment for the recovery 
 of parish lands, peculiar in its nature, perhaps, is that of church 
 wardens and overseers of the poor. These bodies do not possess 
 the power, at common law, to bring this action. But, to remedy 
 
TRE claimant'' S TITLE IN EJECTMENT. 189 
 
 the practical inconveniences wliich frequently arose from the difiB- 
 culty of substantiating a legal title to parish lands in England, it 
 was enacted by statute, that church wardens and overseers of the 
 poor, and their successors, should take and hold in the nature of a 
 lody corporate, for and on behalf of the parish, all buildings, lands 
 and hereditaments, belonging to the parish ; and that in all actions, 
 suits and other proceedings for or in relation to any such buildings, 
 lands or hereditaments, ii should be sufiScient to name the over- 
 jSeers and church wardens of the poor for the time being, describing 
 them as church wardens and overseers of the poor of the parish 
 for which they should act, and that no suit or other proceeding 
 should abate by reason of the death of any such church warden 
 or overseer. (59 Geo. Ill, ch. 12, § 17.) 
 
 It has been held, that, in order to constitute the body corporate 
 intended by this act, there must be two overseers and a church 
 warden or church wardens ; and where there were two overseers 
 appointed, one of whom was afterward appointed (by custom) sole 
 church warden, it was decided that the act did not vest parish 
 property in them. ( Woodcock v. Gibson, 4 Barn. & Ores. E. 462. 
 Phillips V. Pearse, 5 ib. 433.) 
 
 It is decided that leases of parish lands, granted by church 
 wardens and overseers, before the passage of the above statute, 
 convey no interest to the lessees, and that the statute vests in the 
 •church wardens and overseers all buildings, lands and heredita- 
 ments belonging to the parish, not merely where the rents are 
 applicable to the relief of the poor, but also where they are appli- 
 cable to those purposes for which church rates are levied, and that, 
 although the buildings and lands had originally been vested in 
 trustees for the benefit of the parish. {Doe v. Hiley, 10 Barn. & 
 Ores. E. 885. Doe v. Terry, 4 Adolph. & Ell. K. 274. Doe v. 
 CorMl, Ib. 478.) 
 
 It has been held that the legal estate in the parish land belong- 
 ing to a parish forming part of an union under 4 & 5 Wm, IV, 
 ch. 76, is not devested out of the church wardens and overseers, 
 so as to disable them from bringing ejectment, either by section 
 21 of that act, or by 5 & 6 Wm. IV, eh. 69, § 3. Lord Denraan, 
 C. J., observing, that, " although the language of the late acts is 
 so large as hardly to be consistent with the notion that any prop- 
 erty of a parish forming part of an union remains in the parish 
 
190 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 officers, yet that language is not sufficient to devest that property 
 out of them." {Doe v. Webster, 4 Per, & Dav. E. 270.) 
 
 In a few of the American states, the church wardens of episco- 
 pal churches, and the deacons of other protestant churches, are so 
 far corporations by statute, as to take in succession all grants and 
 donations of real and personal property made to their churches, or 
 to them and their successors ; and in some instances, the ministers, 
 elders and vestry are joined with such church wardens or deacons, 
 in such grants or donations, in which case the two classes of offi- 
 cers are made corporations for that purpose. Where such is the 
 statute, those officers msly have their action of ejectment to recover 
 the real property thus granted or donated, in the same manner as 
 a corporation. 
 
 But, as a general rule in the United States, the ordinances of 
 religion are sustained by a religious society, regularly incorporated 
 by special charters, or under a general incorporating act of the 
 state. Although a religious corporation, in some of its objects, 
 embraces matters of a public nature, it is, nevertheless, regarded 
 in law as a private body, in contradistinction to corporations rela- 
 ting to towns, counties, cities and parishes, existing for public 
 purposes; and the religious corporation is governed, in general, 
 by the same rules which control other private civil corporations. 
 These corporations have power to take and hold real property for 
 the purposes for which they are incorporated, and they may bring 
 the usual action for the protection or recovery of such property ; 
 and, unless otherwise provided by statute, all such actions must be 
 prosecuted in the corporate name of the society. The title upon 
 which the claimant can recover in the action of ejectment must 
 be of the same nature as would justify a recovery in case of ordi- 
 nary private civil corporations or private individuals. 
 
 III. In England, they have a statute which gives the remedy by 
 ejectment for the recovery of tithes, to be brought by laymen impro- 
 priators, and the act originally included only this class; but it was 
 subsequently extended to tithes belonging to ecclesiastical persons. 
 (32 Henry VIII, ch. 7. 6 and 7 William lY, ch. 71.) Literally, an 
 impropriator is one who impropriates, or seizes to his own use, but 
 the term applies more particularly to a layman, who has me posses- 
 sion of church property. 
 
 By statute, an ejectment for tithes can only be maintained 
 against persons claiming or pretending to have title thereto, and 
 
TffE CLAIilANT'' 8 TITLE IN EJECTMENT. 191 
 
 not against such persons as refuse to set them ont, -wliieli is called 
 subtraction of tithes. (2 and 3 Edw. VI, ch. 13, § 13.) And it is 
 eaid that the action will not lie when the tithes are not taken in 
 kind, but an annual sum is paid in lieu thereof. (Dyer, 116, 5.) 
 
 In 1813, the commissioners for the inclosure of a parish, the 
 tithes of which were vested in several lay impropriators, appointed 
 meetings for receiving claims, and various claims were put 
 in, but none in respect of tithes, within the time limited by 
 the general inclosure act ; notwithstanding this, the commis- 
 sioners, in 1817, made J. an allottment in respect of the impro- 
 priate tithes of certain land occupied by him, which tithes, as well 
 as the land, J. claimed under the will of P. ; in 1820, W., who 
 claimed these tithes under the heirs of P., on the ground that they 
 did not pass by P.'s will, brought an ejectment for the allottment 
 made in respect of them ; the court held, that, having omitted to 
 make his claim before the commissioners, within the time limited 
 by the act, he could not recover. {Doe v. Jefferson, 2 Bing. E. 
 118.) This is simply the note of the case, as given in 8 English 
 Common Law Reports, at page 342, but enough is given to 
 enunciate the doctrine of the case. 
 
 Akin to this subject, it may be said, that when a party was 
 presented to a rectory in consideration of his having given a bond 
 in favor of a particular person, at the request of the patron, and 
 was instituted and inducted, and such bond was held to be void, 
 on the ground that it was simoniacal, and the king then presented 
 A B, and he was instituted and inducted ; the court held that he 
 might maintain ejectment for the rectory against the person who 
 had been simoniacally presented. (Boe v. Fletcher, 8 Barn. & 
 Ores. H. 25.) It should be said also, in respect to this case, 
 that nothing but the note of it is given, as contained in 15 English 
 Common Law Reports, at page 151 ; but the doctrine of the case 
 is quite apparent from the syllabus quoted. 
 
 That this matter may be the better understood, it should be 
 explained, that, strictly speaking, tithes is a tax of one-tenth of the 
 increase of crops, and the avails of personal industry, levied for 
 the support of the officers of religion, religious worship, or the 
 assistance of the poor. By^he laws of England, as formerly en- 
 forced, all lands except those of the crown, and the church itself, 
 were tithable. Until the reign of William lY, the payment of 
 tithes might be exacted in kind, but in this reign an act was 
 
192 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 passed, providing for the appointment of a board of commission- 
 ers, for the purpose of converting them into a rent-charge, payable 
 in money. (6 and 7 Wm. IV, ch. 71.) Hence it is apparent by 
 what means titlies may be recovered by ejectment. This tax is no- 
 where exacted in the United States, except by the Mormon hier- 
 archy, where the system of tithes bears a close resemblance to that 
 of the Jewish theocracy. The matter is not, therefore, as impor- 
 tant here as in England, and yet it is well that it be under- 
 stood. 
 
 lY. Trustees are possessed with the legal estate, as a general 
 rule, and as courts of law only recognize the legal owner, all actions 
 relating to the legal title of lands held by trustees must be prose- 
 cuted in their name. {Mordecai v. Parher, 3 Dev. E. 425.) And 
 as ejectment caniiot be: maintained unless the claimant has the 
 legal estate in the premises claimed in this action, the demise 
 must always be laid in the name of the trustee. {Cox v. Walker, 
 26 Me. E. 504. Goodtitle v. Jones, 7 Term E. 47. Beach v. 
 Beach, 14 Vt. E. 28. Wright v. Douglas, 3 Barb. E. 555. Mat- 
 thews V. Ward, 10 Gill & Johns. E. 443.) The authorities even 
 go so far as to hold that the grantee of a trustee may bring eject- 
 ment in his own name, even though the transfer was a breach 
 of trust, because a court of law will not examine the equitable 
 relation of the parties. {Oonroy v. Troutman, 7 Ired. E. 155. 
 Reese v. Allen, 5 Gilmore's E. 241. Taylor v. King, 6 Munf. 
 E. 38.) 
 
 Of course, in order that the trustee may be able to bring eject- 
 ment for the lands claimed by him, it must be a case in which the 
 legal estate is in him ; and this is generally the fact, when the 
 trust is not executed by the statute of iises. This subject has been 
 referred to in a previous chapter ; but it remains to refer to a few 
 more cases than was considered in that chapter. 
 
 A distinction has been made between a devise to a person in 
 trust to pay over the rents and profits to another, and a devise 
 to permit some other person to receive the rents and profits ; the 
 legal 'estate, in the first case,. being held to be vested in the trustee, 
 and, in the latter, in the cestui que trust; though Sir James Mans- 
 field said: "It seems miraculous how such a distinction became 
 established ; for good sense requires that in both cases it should be 
 equally a trust, and that the estate should be executed in tho 
 trustee ; for how can a man be said to permit and suffer, who has 
 f 
 
THE claimant's TITLE IN EJECTMENT. 193 
 
 no estate, and no power to hinder the cestui que trust from receiv- 
 ing?" {Poe V. Biggs, 2 Taunt. E. 109, 113.) 
 
 It has been argued in several cases, says Mr. Adams, that a 
 devise to trustees to receive the rents and profits, and pay them 
 over, will not vest the legal estate in the trustees, unless some- 
 thing is required of the trustees which renders it necessary that 
 they should have an interest in the lands, as to pay rates and 
 taxes, and the like, but this doctrine, he says, has not yet been 
 sanctioned by any decisions of the courts. (Adams on Eject. 82.) 
 It seems, however, that in the cases reported it has happened that 
 the trustees have been required to do other acts as vrell as to pay 
 rents and profits. {-Jones v. Lord Say and Sele, 3 Vin. Abr. 262. 
 KenrieJc v. Lord BranclucTc, 3 Bos. & Pull. R. 176. Doe v. Iron- 
 monger, 3 East's R. 533. Doe v. Scott, 4 Bing. E. 505. White v. 
 Parker, Brooke's New Cases, 573.) 
 
 The case in Bosanquet and Puller was this : A devised thus : 
 " As to my real and personal estate, subject to my debts and 
 funeral expenses, I give and devise the same as follows, viz., my 
 real estate, and also my personal estate, unto J. M. and O. "W". 
 and their heirs, on the following trusts, viz., to the intent that 
 they dispose of my personal estate in discharge of my debts, 
 funeral expenses," and such legacies as I may direct ; and as to my 
 real estates, subject to my debts and such charges as I may make, 
 I give and devise the same to E. P. for l?fe." The court held, 
 that under this devise the legal estate in the realty vested in E. P. 
 for his life, and J. M. and 0. W. took no estate therein. 
 
 In a note to a case reported by Saunders, the rule, by which it is 
 to be decided whether the estate be a use executed or trust,"is 
 stated thus : " Where something is to be done by the trustees, 
 which makes it necessary for them to have the legal estate, such 
 as payment of the rents and profits to another's separate use, or 
 of the debts of the testator, or to pay rates and taxes, and keep 
 the premises in repair, or the like, the legal estate is vested in 
 them, and the grantee or devisee has only a trust estate." (Jeffer^ 
 son V. Morton, 2 Saund. E, 11, note 17.) 
 
 When a devise was made to A in trust, to permit and sufier the 
 widow of the testator to have, hold, use, occupy, possess and enjoy 
 the full, free and uninterrupted possession and use of all interest of 
 moneys in the funds and profits arising from the testator's houses 
 for her natural life, if she should remain unmarried ; and that her 
 25 
 
194 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 receipts for all rents, etc., with tlie approbation of any of t]io 
 trustees, should be good and valid, and also paying certain annui- 
 ties ; and, in case the widow should marry again, then upon cer- 
 tain other trusts ; it was held, that the use was executed in the 
 devisees in trust, and, upon this ground, that the testator, having 
 made the approbation of the trustees necessary to the widow's 
 receipts, showing that he did not intend to give her a legal estate; 
 and Gibbs, J., said : " The rule has been misconceived. Thongli 
 an estate be devised to A and his heirs, to the use of B and liis 
 heirs, the courts will not hold it to be an use executed, unless it 
 appear by the whole will to be the testator's intent that it should 
 be executed. The courts will rather say the use is not executed, 
 because the approbation of the trustee is made necessary, than 
 that the approbation of a trustee is not necessary because the use 
 is executed. The very circumstance which is to discharge tlie 
 tenants is the approbation of one of the trustees. 'I leave my 
 wife to receive the rents, provided there is always the control of 
 one of the trustees upon her receipts.' The testator, therefore, 
 certainly meant that some control should be exercised, and what 
 could that control be, except they were to exercise it in the char- 
 acter of trustees ? " {Gregory v. Henderson, 4 Taunt. E. 772.) 
 
 When certain freehold and leaseJiold premises were devised to 
 trustees, " to permit and suffer the testator's wife to' receive and 
 take the rents and profits," and other lands were devised to the 
 same trustees, upon trusts clearly not executed by the statute, and 
 immediately after the last of the different devises, a proviso fol- 
 lowed, " that it should be lawful for the trustees, at any time, till 
 oM, the said lands, etc., devised to them, should actually ieoome 
 vested in any other person or persons, by virtue of the will, or 
 until the same, or any part thereof, should le absolutely sold, as 
 aforesaid, to lease the same, or any part thereof," it was held that 
 the legal estate in the freehold lands contained in the first devise 
 vested in the widow, notwithstanding that leasehold premises were 
 contained in the same devise (the legal interest in which, of course, 
 vested in the trustees), and the subsequent leasing power given by 
 the will, " the trustees having no control over the lands in the first 
 devise, for any purposes of the testator's will." {Right v. Smith, 
 12 East's R. 455.) 
 
 Where the devise was, that the trustee should pay \mto, or else 
 permit and suffer the testator's niece to receive the rents, the lc»al 
 
TEE CLAIMANT'S TITLE IN EJECTMENT. 195 
 
 estate was held to be in the niece, because the words "to permit 
 and suffer" came last; and in a ■will, the last words prevail, 
 though in a deed, the first. Lord Mansfield, C. J., in delivering 
 the opinion of the court, disposed of the case in these few words : 
 " This case might be argued and considered forever, without 
 advancing it at all in law, reason or precedent. But as it happens, 
 in this will, the last words are 'permit and suffer,' which give 
 the cestui que trust a legal estate ; and the general rule is, that if 
 •there be a repugnancy, the first words in a deed, and the last 
 words in a will, shall prevail ; and consequently, for want of a 
 better reason, we are forced to say, we think tliis will gives the 
 legal estate to the party beneficially interested." {Doe v. Biggs, 
 2 Taunt. E. 109.) 
 
 "When freehold estates are devised to trustees, it is often difficult 
 to determine the quantum of estate taken by the trustees ; but the 
 general principle is, that a devise to trustees, if it give them any 
 estate, will give them such estate as would have passed by similar 
 words in a beneficial devise, unless the exigencies of the trust can 
 be satisfied 'with less. But that, if the exigencies of the trust 
 can be so satisfied (as, for example, by a freehold estate ^owr autre 
 vie, where the only trust was for the life of the cestui que triist, or 
 by an indefinite chattel interest, where the trust was to raise a sum 
 of money), tlie use of language, which in a beneficial devise would 
 have passed the fee, would not preclude a more limited construc- 
 tion, so that the less estate only should be taken and not the fee. 
 {Doe V. Willan, 3 Barn. & Adolph. R. 84. Doe v. WallbrpoTc, lb. 
 564. WasJi V. Coates, 3 ib. 839. Doe v. Williams, 2 Mees. & 
 Welsh. R. 749. Doe v. Dames, 1 Queen's Bench E. 430. Ack- 
 land V. Pring, 8 Scott's N. S. E. 297.) In such eases, tlie trustee 
 cannot, after the determination of such less estate, maintain 
 ejectment. 
 
 Where a trust has once been created in respect to real estate, it 
 attaches to and binds itself upon the estate, and can never be 
 detached from it, nor extinguished, except by a union of the legal 
 and equitable estates in one person, the equitable, in such case, 
 being merged in the legal estate. (2 Wash, on Eeal Prop., 3d ed., 
 470, and authorities there cited.) But it is foreign to this treatise 
 to discuss the nature and principles governing trust estates. It is 
 sufficient here to show the cases in which the trustee is entitled to 
 an ejectment to recover the lands claimed by him. With respect 
 
196 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to the duty of trustees in relation to real property, it is held, that 
 pernancy of the profits, executions of estates, and defense of the 
 land, ai-e the three great properties of the trust. Therefore, a 
 court of chancery will compel trustees, among other things, to 
 . defend the title of the land in any court of law or equity. (Cruise 
 Dig., tit. 12, ch. 4, § 5.) And in all purely trust estates, the legal 
 title is in the trustee, and hence he may maintain ejectment in his 
 own name to recover it. Generally, the action cannot be brought 
 in the name of any one else ; though in some of the states, as in 
 Pennsylvania, ejectment may be maintained, as we Jiave before 
 seen, either by the trustee or cestui que trusty when entitled to the 
 possession, because there it is an equitable as well as legal action. 
 {Hunt V. Crawford, 3 Penn. R. 426. Presbyterian Congregation 
 V. Johnson, 1 Watts & Serg. P. 56.) But the rule at common law, 
 and by the statutes of most of the states, where any exist on the 
 subject, is, that the person having the legal estate only can main- 
 tain the action ; and the rule of the common law also is, that the 
 trustee takes that quantity of interest only which the purposes of 
 the trust require, and the instrument creating it permits. The 
 legal interest is in the trustee so long as the execution of the 
 trust requires it, and no longer, and then it vests in the person 
 beneficially entitled. (Doe v. Nicholls, 1 Barn. & Ores. P. 336. 
 Doe V. Edhie, 4 Adolph. & Ell. P. 582. Doe v. Eioart, 7 ib. 636. 
 Dos V. Simpson, 5 East's P. 162. Doe v. Needs, 2 Mees & Welsh. 
 P. 129. Doe V. Tinins, 1 Barn. & Adolph. P. 530. Jefferson v. 
 Morton, 2 Saund. P. 11, n. 17. And vide NiooU v. Walworth, 4 
 Denio's P. 385.) 
 
 It has beeii decided that terms of years do not cease when the 
 tenants are satisfied, unless by special proviso in the deed itself; so 
 that the legal estate, however ancient the term may be, and not- 
 withstanding it may have been assigned to attend the inheritance, 
 will always remain outstanding in the trustees until it has been 
 surrendered to the party beneficially interested, or merges in 
 a larger estate. The practical inconveniences arising from this 
 rule of the common law, as regards the legal rights of the cestui 
 que trust, gave rise to the doctrine of presumed surrenders ; and 
 juries have been directed to presume that regular surrenders have 
 been made by the trustees of such terms, so as thereby to clothe 
 the cestui que trust with the legal estate, and enable him to 
 recover in ejectment, without burdening the case with demises 
 
THE CLAIMANT'S TITLE IN EJECTMENT. 197 
 
 by the trustees or their representatives, or the costly proofs neces- 
 sary thereon. Thus surrenders have been presumed, if the pur- 
 poses of the trust estate liave been satisfied {Doe v. Staple, 2 
 Term E. 684. Doe v. Davies, 1 Queen's Bench E. 430) ; or if 
 tlio beneficial occupation of the estate by the possessor induces a 
 supposition that a conveyance of the legal estate has been made 
 to the party beneficially interested {Doe v. WilUainf!, 2 Mees. & 
 "Welsh. E. Y49) ; or when it is for the interest of the owner of the 
 inheritance, that the term should be considered as surrendered 
 {Doe v. Wright, 2 Barn. & Ores. E. 710) ;. or when the trust is a 
 plain one, and a court of equity would compel the tinistees to make 
 a conveyance. {Doe v. iiSlade, 4 Term E. 682.) But such pre- 
 suttiptions will not be made if the surrender be a breach of the 
 trust, or against the owner of the inheritance, who is interested in 
 upholding it {Doe v. Scott, 11 East's E. 478); or when the title 
 of the party, for whom the presumption is required, 'is a doubtful 
 equity only, until a court of equity has first declared in favor of 
 the equitable title. {Keene v. Deardon, 8 East's E. 248.) Nor can 
 the presumption be made by the court, where the merits of the 
 case would have warranted such presumption at the trial, if it 
 appear, upon a special verdict, or special case resei-ved for their 
 opinion, that the trust estate, though satisfied, is still, in point of 
 fact, outstanding in the trustees. {Goodtitle v. Jones, 7 Term E, 
 43. And vide Doe- v. Hilder, 2 Barn. & Ores. E. 782. Doe v. 
 Plowman, 2 Barn. & Adolph. E. 673.) But it seems that the 
 doctrine of presumed surrenders has been abolished in England by 
 statute, and is no longer recognized there. (8 and 9 Vict. ch. 112, 
 §§ 1, 2.) 
 
 "When the demised preniisos are settled for life iipon A, with 
 power to charge the estate with portions, and power to grant 
 leases for twenty-one years ; and A granted and appointed the 
 same for five hundred years to trustees upon trustj if she should 
 by deed so appoint, to such portions ; and, after such grant and 
 appointment, leased the premises for twenty-one years to B ; the 
 court held, that, taking the whole deed together, the term, until it 
 was called into action, was subservient to the leasing power ; and 
 was, therefore, no answer to an ejectment brought by B. {Doe v. 
 Thomas, 9 Barn. & Ores. E. 288.) 
 
 The general rule is, that, unless in the case of a clear trust, the 
 equitable title of ceslAii que trust shall not be set up against the 
 
198 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 legal title of the trustee ; and in one case the court of king's 
 bench held, that if it appears, on a special verdict in ejectment, 
 that a satisfied term is outstanding in a trustee who is not joined 
 in bringing the ejectment, the cestui que use cannot recover. 
 {Goodtitle V. Jones, 1 Term E. 43, 47.) 
 
 When A devises copyhold lands to " trustees in fee, who are to 
 be from time to time renewed, in trust that the rents and profits 
 shall forever afterward be disposed of to certain charitdbls pur- 
 poses ; and directs that the retit of said copyhold lands bring 
 eleven pounds per annum, shall never be improved or raised, but 
 shall continue at eleven pounds per annum, and that B, who was 
 the tenant of the said copyhold lands, eind his children and pos- 
 terity which shall succeed shall never he put forth or from the 
 same, hut always continue the possession, paying the rent of eleven 
 pounds." Neither B nor his descendants were ever admitted on 
 the court rolls. The court of common pleas decided, that if B 
 took any estate it was an equitable estate tail, the above words 
 being clearly such as would create an estate tail; but that the 
 interest of B, whatever it was, would not prevent the trustees 
 recovering in ejectment, though the rent had been regularly paid. 
 The court held, that an equitable estate tail of a copyhold cannot 
 be barred by the devise alone of the tenant in tail ; and it was a 
 question with the court, whether it would be barred by a lease of 
 the equitable tenant in tail for a long term, i. e., two thousand 
 years. But the opinion was decided, that, when snch lease is 
 attended with doubtful or suspicious circumstances, it will not 
 prevent the trustees who have the legal estate from recovering in 
 ejectment against the lessee. Nor was it regarded an objection to 
 the title of the trustees, that, from the time of the original devise 
 oi K to a certain period, the former trustees did not appear to 
 have been admitted on the rolls of the manor, if there had been 
 regular surrenders and admittances for a considerable length of 
 time, say for above forty years, since that period; for it will be 
 presumed, that surrenders and admittances were duly made before 
 that period, especially as the rent had been paid during the whole 
 time. {Roe v. Loioe, 1 H. Black. R. 446.) 
 
 It will be observed, that this last case was that of a copyhold 
 estate, and there are some rules respecting such estates which are 
 not applicable to other estates. But it has been expressly held, 
 in a later case, that a lease from the oestxd que trust cannot be set 
 
THE claimant'' S TITLE IN EJECTMENT. 199 
 
 up against the trustee in any case, without the aid of a court of 
 equity. {Baker v. Mellish, 10 Ves. Jr. E. 544.) 
 
 So the general proposition may be laid down, that in all cases 
 of trusts, unless the same are executed by a statute of uses, the 
 legal estate vests in the trustees, and they may maintain eject- 
 ment ; and that, except in those states where ejectment is an 
 equitable as well as legat' action, the legal title of the trustee is 
 the only one on which the action can be sustained. 
 
 V. Another case, somewhat peculiar in its nature, in which the 
 action of ejectment may be maintained, is that of a joint-tenant, 
 eo-parcener, or tenant in common, against his companion. In 
 these cases the action may be brought where there has been an 
 aetual ouster. Indeed, it has been held, that one tenant in com- 
 mon may maintain ejectment against his co-tenant, though no 
 actual ouster be proved. (Shephard v. Rogers, 15 Johns. K. 501. 
 And vide Eades v. Rucker^ 2 Dana's E. 111.) But the general 
 rule undoubtedly is, that one tenant in common cannot maintain 
 the action against his co-tenant without actual ouster. This must 
 be so, for the reason that it is a maxim of the common law, that 
 the possession of one joint-tenant, parcener, or tenant in common, 
 is prima facie the possession of his companion also. {Ford v. 
 Gray, Salk. E. 285. Smalcs v. Dale, Hob. E. 120. Doe v. Keen, 
 7 Term E. 386.) And it would therefore follow, that the posses- 
 sion of one joint-tenant can never be considered by the common 
 law as adverse to the title of the other, unless it be attended by 
 circumstances demonstrative of an adverse intent ; or, in other 
 words, whenever one joint-tenant, parcener, or tenant in common 
 is in possession, his fellow is, in contemplation of the common law, 
 in possession also, and it would be necessary, in order to enable 
 his companion to maintain ejectment, to rebut tliis presuniption 
 by proof of an actual ouster. What acts will amount to an actual 
 ouster is a question not always very easily deterinined. Many 
 subtle distinctions have been taken in regard to the matter ; but 
 the authorities will be more appropriately referred to when the 
 proof requisite to sustain the action of ejectment is considered. 
 It suffices to say here, that the action may be maintained in these 
 cases. when there has been an actual ouster; and, in some of the 
 states, statutes exist under which a recovery may be had when 
 there is something less. 
 
200 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In the state of ITew Tort, the statute provides that if the action 
 of ejectment be brought hy one or more tenants in common, or 
 joint-tenants, against the co-tenants, the plaintiff, in addition to 
 all other evidence wliich he may be bound to give, shall be required 
 to prove, on the trial of the cause, that the defendant actually- 
 ousted such plaintiff, or did some other act amounting to a total 
 denial of his right as such co-tenant. (2 Stat, at Large, 315, § 27.) 
 This is little else than the re-enactment of the common law upon 
 the subject. The denial referred to must be such, when made, as 
 , to amount to a disseisin of the co-tenant ; or such as will establish 
 an adverse possession on the part of the wrong-doer. {Ghjpp v. 
 Bromagen, 9 Cow. E. 556, 563; Edwards v. Bishop, 4 N. Y, 
 E. 61.) 
 
 If tenants in common hold together under a possessory title 
 derived from their ancestor, a part of them cannot assert a subse- 
 quently acquired title against the others, except by ejectmejdt, 
 after first surrendering possession to the others. {Phelon v. Kelhy, 
 25 Wend. E. 389.) 
 
 It has been held, in I^ew York, that, in an action of ejectmcat, - 
 the defendant cannot put the plaintiff to proof of actual ouster, 
 by merely proving that others are entitled in common with him. 
 He is required to show that he is himself such tenant with the 
 plaintiff. {Gillett v. Stanley, 1 Hill's E. 121.) And this was held 
 to be the rule, though the plaintiff declares only for an undivided 
 portion of the premises ; for, the presumption is, the defendant 
 being in possession, that he claims the whole in- hostility to the 
 plaintiff. {Sharp v. Ingraham, 4 Hill's E. 116.) 
 
 The superior court of the city of New York decided, that, in 
 an action for the recovery of land, brought against a co-tenant in 
 common, the denial in the answer of all right, title and interest 
 of the plaintiff in the land involved in the action, is a confession 
 of ouster, and 'will entitle the plaintiff to recover. {Olason v. 
 Ranhin, 1 Duer's E. ,337.) 
 
 It has been decided that one of several co-parceners may main- 
 tain ejectment on her separate demise. {Jackson v. Sample, 1. 
 Johns. Cases, 232.) But in Kentucky, it seems that a tenant in 
 common is not permitted to recover in ejectment on a .joint 
 demise. {Gaines v. Buford, 1 Dana's E. 483.) 
 
 Of course, one tenant in common may oust his co-tenant and 
 hold in severalty, in which case the action of ejectment may be 
 
TnE claimant'' S TITLE IN EJECTMENT. 201 
 
 broiTglit against him by his companion. But a silent possession, 
 accompanied with no act which can amount to an ouster, or give 
 notice to his co-tenant that his possession is adverse, ought not to 
 be construed into an adverse possession. {MoClung v. Hoss, 5 
 Wheat. E. 116.) 
 
 In the state of Yermont, tenants in common, holding under a 
 devise of an estate, to be equally divided between them, may 
 maintain a joint action of ejectment. {HicJcs v. Rogers, i Cranch's 
 U. S. "R. 165. And vide Birney v. Birney, 16 Vt. E. 136.) The 
 same rule is also recognized in the stktute of Kentucky. {Inis 
 V. Crawford, 4 Bibb's E. 241. Harrison v. Botts, lb. 420. And 
 vide Chiles v. Cowley, 9 Dana's E. 385.) 
 
 But in the state of Missouri the rule is different. There tenants 
 in common cannot join in the action of ejectment to recover their 
 -lands wrongfully withheld by a wrong-doer Wathen v. English, 
 1 Mo. E. 746. JDube v. Smith, lb. 313.) And in England, an 
 action of ejectment founded on a joint demise cannot be sustained. 
 {Heatherly v. Weston, 2 Wils. E. 283.) 
 
 In the state of ITew York, the statute provides for the bringing 
 of the action "by one or more tenants in common, or joint- 
 tenants, against their co-tenants ; " and the general rule has been 
 disregarded, and actions of ejectment, founded on a joint demise 
 by tenants in common, have been sustained. {Jackson v. Bradt, 2 
 Caines' E. 169, 174. Malcolm v. Rogers, 5 Cow. E. 188. Doe v.- 
 Butler, 3 Wend. E. 149.) The principle on which these cases 
 pi'oceed is, that the possession of tenants in common is joint, and 
 that they may join in disposing of that interest. The demise 
 alleged in the action of ejectment is of a possessory interest, and 
 no more; and such a right only is recovered. But, although that 
 doctsine may be sound as to the mere right of possession of tenants 
 in common, it has no application to their right oi property. They 
 have not, as joint-tenants and co-parceners have, a joint right of 
 property. Their freeholds are several, and therefore they cannot, 
 at common law, join in real actions. But the rule has been modi- 
 fied by the statute, which declares that when several persons are 
 "entitled to real estate, as tenants in common, or as joint-tenants, 
 they may bring an action for the recovery thereof, or may bring 
 several actions for their respective shares or interests." (2 Stat, at 
 Large, 251, 253, § 11.) This statute changes the common law, as 
 it authorizes a joint action to be brought by all the tenants in com- 
 26 
 
202 LAW OF EJMCTMENT AND ADVERSE ENJOYMENT. 
 
 mon. It lias been decided, however, that under the statute, if all 
 do not join in one action, each must bring a separate suit for his 
 individual share; and it V7as accordingly held that two out of 
 seven tenants in common, could not bring a joint action. {Cole v. 
 Irvine, 6 Hill's E. 634 ) But in a later case, the judge who 
 delivered the opinion of the court declared that there was no 
 difficulty in this state in tenants in common uniting in the action 
 of ejectment, saying : " As their right to unite did not depend upon 
 the statute, which received a construction in Cole v. Irvine, there 
 is no necessity as there is no reason for applying the principle 
 there decided. 
 
 In Jackson v. Bradt, there was a recovery of ten-twelfths of the 
 premises, showing that it was not then considered necessary that 
 all the tenants in common should unite in the action, although 
 several had done so." (Kellogg v. Kellogg, 6 Barb. K. 116, 132.) 
 Tenants in common are deemed to have several and distinct free- 
 holds, and each is considered as solely or severally seised of his 
 share ; and it is difficult to understand upon what principle they 
 can sue jointly in actions that savor of the realty, without a statu- 
 tory provision to sanction it. At the same time it is conceded that 
 the common-law rule relating to the recovery of real estate by 
 tenants in common has been changed by the statute of New York, 
 before quoted ; so that now in this state, tenants in common 
 entitled to any real estate may join in the action for the recovery 
 of it. 
 
 VI. In respect to the recovery of the real estate of lunatics, the 
 action must, in all cases, be brought in the name of the lunatic, 
 unless in some particular state a statute may exist, authorizing the 
 action , to be brought in the name of a committee or guardian. 
 At common law, the action of ejectment must be brought in the 
 name of the lunatic personally, and not in the name of the com- 
 mittee. The authorities on the subject are uniform, that the action 
 must be prosecuted in the name of the lunatic. The committee 
 is a mere bailiff or servant, acting under the direction of the 
 court, which has the care and custody of idiots and lunatics, 
 and of their real and personal estate, and the interest and the 
 right of action remain in the lunatic. {Petrie v. Shoemaker, 24 
 "Wend. E. 85.) Lane v. Schermerhorn, 1 Hill's E. 97. Drury v. 
 Fitch, Hutton's E. 15. Cochs y. Dawson, Hobart's E. 215. Knipe 
 V. Palmer, 2 Wils. E. 130.) 
 
THE CLAIMANT'S TITLE IN EJEdTMENT. 203 
 
 In the state of New York, receivers and committees of lunatics 
 and habitual drunkards, appointed by any order or decree of the 
 coxirt, may sue in their own name for debts, claims and demands 
 transferred to them, or to the possession and control of which they 
 are entitled as such receiver or committee ; but there is no similar 
 provision in respect to the recovery of the real property of the 
 lunatic. 
 
 Of course, the nature of the title which will support the action 
 in favor of a lunatic must be the sanie as that required in the 
 action in favor of a person who is sane. 
 
 VII. It seems that ejectment may be maintained for freehold 
 lands, on the demise of a person attainted of a felony, where there 
 has been no office f(5und on behalf of the king. When this ques- 
 tion first came before the court of kins-'s bench of England in 
 1833, Lord Denman, C. J., said : " Then comes the question, 
 whether, even before office found, a person civilly dead can con- 
 vey any interest in his lands which are forfeited to the crown. On 
 this point no sufficient authority has been brought to our notice. 
 "We must take further time to consider it." 
 
 On a subsequent day of the same term, the chief justice delivered 
 the judgment of the court, and said : " The only point in this 
 case upon which the court took time to consider was, whether an 
 action of ejectment can be maintained upon the demise of a per- 
 son attainted of felony. It is admitted that an estate of freehold, 
 which this was, is not divested in cases of attainder, until office 
 found. Here no office has been found, and therefore the crown is 
 not entitled. 
 
 " It is laid down in Perkins' Profitable Book, title ' Grants,' § 26, 
 that a man attainted of felony or murder, etc., may make a grant 
 of a rent or common, or a feoffment, etc., and the same shall bind 
 all persons, but the king (for his time), and the lord of wliom the 
 land is holden. This passage is referred to in Comyn's Digest, 
 title ' Capacity,' d. 6. The same doctrine is laid down in Shep- 
 pard's Touchstone, ^32. 
 
 " The passage in Co. Lit. 42, b, which seems at first sight to 
 be contrary, will, on examination, be found to be consistent with 
 these authorities ; for, after stating that persons attainted of felony 
 have no ability to enfeoff, etc., he concludes : ' for the feoffments, 
 etc., of these may be avoided ;' and doubtless they may be by the 
 king. 
 
204: LAW OF EJECTMENT AND ADVERSE ENJOYHIENT. 
 
 " The case of Bullock v. Dodds, 2 B. & A. 258, was pressed in 
 argument. It is sufficient to say, as to tliat case, that it was an 
 action for a chattel which had vested in the king without office 
 found, and is therefore no authority upon this occasion. We are, 
 therefore, of opinion that Humphrey Evans, the lessee of the 
 plaintiff, was capable of granting, and that judgment must be 
 given for the plaintiff." {Doe v. Pritchard, 5 Bam. & Ores. 
 E. 766:) 
 
 Forfeiture of estate, and corruption of blood, under the laws of 
 the United States, and including cases of treason, are abolished. 
 (Laws of U. 8. of 1790, ch. 9, § 2L) Forfeiture of property, in 
 cases of treason and felony, was a part of the common law, and 
 must exist at this day in the jurisprudence ofthose states where 
 it has not been abolished by their constitutions or by statute. But 
 it is understood that there is at present no forfeiture in the United 
 States for felony ; and in only a few of the states for treason. 
 ( Vide 2 Kent's Com. 386.) Usually, by statute, a sentence of 
 imprisonment in a state prison, for any term less than for life, 
 suspends all the civil rights of the person so sentenced, during the 
 term of such imprisonment ; but as a general thing, the title to 
 real property, derived from a person guilty of any crime, however 
 heinous, before he has been actually convicted and sentenced, is 
 sufficient upon which to predicate the action of ejectment. 
 
 YIII. Under certain circumstances, possession, unaccompanied 
 by an acknowledgment of title in another person, is sufficient to 
 enable the party to maintain ejectment. It has been before stated 
 that possession is prima facie evidence' of ownership; and as 
 between two parties who rely solely upon possession, the presump- 
 tion of ownership is in favor of the first possessor ; so that proof 
 of possession by a claimant, however short, will entitle him to 
 recover, unless the defendant can account for such possession, or 
 show a prior possession or title in himself or a third person. As 
 the question of a possessory title has been fully discussed in a pre- 
 vious chapter, it is wholly unnecessary to dwell upon the subject 
 here. ( Vide ante, ch. 4!, and also Doe v. Cook, 7 Bing. R. 346.) 
 
 IX. Finally, it has been held, that where the lessor of the plaintiff 
 and the defendant in ejectment, had before referred their right to 
 the land to an arbitrator, who had awarded in favor of the lessor, 
 the award concludes the defendant from disputing the title of the 
 lessor, in an action of ejectment. The award cannot have the 
 
TBE CLAIMANT'S TITLE IN EJECTMENT. 205 
 
 operation of conveying the land ; but there seems to be no reason 
 ■why the party may not conclude himself by his own agreementj 
 from disputing the title of the lessor in ejectment. Tlie parties 
 had consented that the award of the arbitrator chosen by them- 
 selves, should be conclusive as to the right to the land in contro- 
 versy between them; and the court declared th^t sufficient to bind 
 them in the action of ejectment. {Doe v. Roper, 3 East's II. 15.) 
 
 Upon a similar principle, it has been held, that if one party 
 agree in writing with another, that he shall own and hold a piece 
 of land to him and his heirs, and he delivers him the possession, 
 and that possession is held and enjoyed for a time beyond the 
 memory of man ; in such case, though the writing be deficient in 
 the requisite terms to pass a fee, the party will bS concluded, by 
 his agreement and subsequent acts, from disputing the title. 
 {Emans v. TurniuU, 2 Johns. E. 313, 332.) 
 
 The matter of arbitrating, however, is frequently regulated by 
 statute, and sometimes, as in New York, no submission can be 
 made respecting the claim of any person to any estate in fee or 
 for life, to real estate ; while any claim to an interest for a term 
 of years, or for one year or less, in real estate, and controversies 
 respecting the partition of lands between joint tenants, or tenants 
 in common, or concerning the boundaries of lands, or concerning 
 the admeasurement of dower, may be submitted to arbitration. 
 (2 K Y. Stat, at Large, 560, § 2.) 
 
 It has been held that this statute forbids the submission of claims 
 to an estate in lands, only when the controversy is as to the legal 
 title, and not when the equitable title only is in dispute. {Oloott 
 V. Wood, 14 ¥. Y. E. 32. Vide SelUck v. Adams, 15 Johns. E. 
 197.) But it will be important in all cases where title is claimed 
 by an award under a submission to arbitration, that the statutes 
 of the state be consulted to see if there exists any prohibition in 
 the particular case. 
 
206 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 CHAPTER XI. 
 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLOED AND TENANT — HOW 
 TENANCIES MAY BE DETERMINED THE NOTICE TO Q0IT. 
 
 In the preceding chapters, the nature of the title necessary to 
 support an action of ejectment has been considered in those cases 
 in which the title to the premises claimed must be actually proved 
 by the claimant. In the beginning of that discussion it was 
 asserted that there were cases in which the claimant might not in 
 fact have title to the land iu dispute, and yet the circumstances 
 be such as that, between the parties to the action, the title would 
 be established. These cases chiefly arise where the relationship 
 of landlord and tenant has subsisted between the parties ; and it 
 now remains to consider the rights of landlords and tenants in 
 respect to the remedy by ejectment, and the usual modes by 
 which tenancies may be determined, and the estate of the tenant 
 forfeitisd. This particular subject fills about one-quarter of Mr. 
 Adams' entire Treatise on Ejectment, and the discussion is coniined 
 exclusively to the practice in England. It is proposed here to 
 examine the subject in respect to both England and America ; and 
 it is hoped and expected, even then, to condense the matter into a 
 much smaller compass than it occupies in the work of Mr. Adams. 
 
 It is well said by Mr. Adams, that the power of determining a 
 tenancy is necessarily consequent upon the right of creating one ; 
 and the law implies a mutual reservation of such power in all 
 contracts between landlords and tenants, whenever it is not 
 expressly reserved. Whenever such power is expressly reserved, 
 the determination of the tenancy is, of course, dependent upon 
 the terms of the reservation ; and the tenancy >^'ill cease when the 
 term ends, the event happens, or the covenants are broken ; but 
 if there be no express reservation, but the party is let into posses- 
 sion as tenant under a general holding, the law creates between 
 the parties a tenancy from year to year, determinable by a notice 
 to quit from either, by the landlord or tenant. This is the rule 
 in brief, as stated by Mr. Adams, and it cannot be any better 
 expressed. (Adams on Eject. 73.) 
 
 It would seem to be a very clear proposition, that when the 
 tenancy is determined by the efflux of time, or the happenino- of a 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 207 
 
 particular event, the right of entry in the landlord at once accrues, 
 and he may proceefl by ejecttaent to recover the premises without 
 notice or demand of possession, or accompanying ceremony or 
 announcement. Upon this part of the subject, therefore, it is 
 hardly necessary to dwell, or cite authorities ; and yet this very 
 plain proposition, that, M'here the tenancy of the lease is to expire 
 at a certain specified time, the landlord may proceed at once, on 
 the expiration of tlie time specified, to recover his premises by 
 ejectment, without giving any notice to the tenant to quit, or 
 demanding the possession, has been settled by judicial authority. 
 ( Vide Bedford v. McElhcrron, 2 Serg. & Rawle's R. 49. Den v. 
 Adams, 7 Halst. E. 99. Eoe v. Ward, 1 H. Bl. R. 97.) There 
 may be cases, of course, where the tenant holds over after the 
 expiration of the term, by the consent of the landlord, express or 
 implied, and the tenancy might have to be terminated by notice. 
 Assuming, however, that the landlord proceeds promptly to 
 recover possession of the demised premises on the expiration of 
 the term, the practice is exceedingly clear, and there is precious 
 little room for question or debate. 
 
 But the principles by which tenancies from year to year, and 
 • for uncertain periods, are governed, and the rules for the regula- 
 tion of the rights of re-entry for the breach of covenants and con- 
 ditions, are not so simple, and here it is necessary to enter quite 
 largely upon the discussion. And the subject will be taken up 
 nearly in the order in which the same is treated by Mr. Adams ; 
 such order being as natural, perhaps, as any other which can be 
 adopted. 
 
 A tenancy for years is where a man lets lands or tenements to 
 another for a term of certain years after the number of years that 
 is accorded between the lessor and lessee. And where the lessee 
 enters by force of the lease, then is he tenant for a terra of years. 
 This is the description given by Littleton four hundred years ago, 
 and it is applicable to the estate for years at the present day. The 
 estate may be limited to one or more years ; and an agreement for 
 the possession of lands for half a year, a quarter of a year, a month 
 or a week, or any less time, is treated as an estate for years, as that 
 is the shortest period the law takes notice of. (Litt. §§ 58, 67.) 
 
 The estate for ydars is created by the act of the parties, and not 
 by the act of the law, and, where the estate is created, the relation 
 of landlord and tenant subsists. The contract creating the estate 
 
208 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is called a lease, and sometimes a demise, and is a species of con- 
 veyance to the tenant,, in consideration of a certain return of rent, 
 and must in all cases be for a shorter term than the landlord him- 
 self has the land ; for, if he parts with the whole interest which 
 he has in the premises, it is more properly an assignment than a 
 lease. 
 
 An estate for years is sometimes called a term ; and the party 
 holding it is designated as a termor. The expression term signiiies 
 not merely the period of time during which the estate is to 
 continue, but also the estate or interest which passes from that 
 period. The estate must have a certain beginning and a certain 
 end, which must be certain when the estate takes effect in interest 
 or possession. (1 Inst. 45, h.) 
 
 When the relation of landlord and tenant is once established, it 
 attaches to all persons who succeed to the possession of the premi- 
 ses, through or under the first tenant ; and they are all as much 
 bound by the covenants and agreements of the original lessee, as 
 though they were their own. This is upon the principle that 
 covenants in leases fasten themselves upon, and run with, the land, 
 as to their burden ; and a covenant is capable of running with the 
 land, although not directly to be performed upon it; provided it 
 tends to increase or diminish the value of the laud, in the hands 
 of the holder. The land which the original tenant holds is the 
 consideration he has received for his contract or burden, and when 
 he sells or assigns the same, his assignee receives the estate of the 
 assignor ; and no future party has any right to complain of any 
 lawful burden attendant upon it, whether of covenant or condi- 
 tion ; because independent of the lease, neither estate nor burden 
 could ever have reached him. ( Vide Van liensselaer v. Smith, 
 37 Barb. R. 104, 148.) 
 
 A lessee for years may assign or grant over, not only his whole 
 interest, but he may grant it for a less number of years than he 
 himself holds the land ; and such derivative lessee is compellable 
 to pay rent, and perform covenants according to the terms agreed 
 in such grant or lease. That the assignee of a lease becomes 
 privy in estate with the original lessor, and bound by the covenants 
 of the original lessee, so that an action will lie against him by the 
 original lessor, is a rule perfectly well established by a long train 
 of authorities. ( Vide Patten v. Deshon, 1 Gray's E. 327. Torrey 
 V. Wallis, 3 Cush. E. 442. Demafest v. Willard, 8 Cow. E. 206. 
 
EJECTMENT AS BETWEEN LANDLORD AxId TENANT. 209 
 
 Matures v. Westwood, Cro. Eliz. 599, 617. Glover v. Cope, 4 
 Mod. E. 81. Bally_ v. Wells, 3 Wils. E. 29. Slevenson v. 
 Lamhard, 2 East's E. 575.) But an assignee of the lessee of a 
 lease is only liable while he continues to be the legal assignee ; 
 that is, while he is in possession under the assignment. ( Walker 
 V. lieeves, Dong. E. 461. St. Saviour's Churchwardens v. Smith, 
 3 Burr. E. 1271. Taylor v. Shum, 1 Bos. & Pull. E. 21, 23.) 
 It has been decided that an assignment of a part of the premises 
 for the whole term is an underletting. {Fulton v. Stuart, 2 
 Ohio E. 369.) And an assignee of a lease is bound to know the 
 contents of the lease itself, and should he take an assignment of 
 such lease without seeing it, or actually knowing its conditions, 
 and take possession and enjoy the premises, he is liable to tlie 
 original lessee, the same as though he knew all about it. {Barroil- 
 het V. Battelle, 7 Cal. E. 454.) 
 
 There is a species of lease where no certain term is mentioned 
 during which it is to run, in which case the lessee is called a tenant 
 at will. Lord Coke defines a tenancy at will to be " where lands 
 and tenements are let by one man to another, to have and to hold 
 to him at the will of the lessor, by force of which the lessee is 
 in possession. The lessee is called tenant at will, because he hath 
 no certain or sure estate, for the lessor maj' put him out at what 
 time it pleaseth him." And there is another species of tenancy 
 called a tenancy by suiferance, which happens where the tenant 
 holds over after his term has expired by the lease under which he 
 took possession, without any fresh lease of the owner of the estate. 
 This estate, however, for very good reasons, has come to be gene- 
 rally regarded as a tenancy from year to year, not determinable at 
 the will of either party, except at the end of the current year^ and 
 then only by service of the requisite notice. To preserve a uni- 
 formity in business transactions, it is usually understood that a 
 j'ear consists of three hundred and sixty-five days ; a half year, 
 one hundred and eighty-two days, and a quarter of a year, ninety- 
 one days ; and the added day of leap year, and the day immediately, 
 preceding it, if they occur in any period to be computed, are 
 reckoned together as one day. And the term " month" is generally 
 understood to mean a calendar and not a lunar month ; although 
 all this matter of computation of time is often regulated by 
 statute, but usually in accordance with this rule. "When there is 
 no statute upon the subject, the same would, doubtless, be settled 
 27 
 
210 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 by the local custom. Custom is a law established by long usage. 
 A universal custom becomes common law. If the usage be con- 
 fined to a particular place, it is a custom ; and, in the absence of 
 statutory enactment, customs are allowed to prevail. 
 
 It has been decided, that, where a lease is to run from a par- 
 ticular day, that day is excluded from the term, viz., where the 
 lease of premises was from the first day of May in one year to the 
 first day of May in the succeeding year, the court excluded 
 the first day. ( Wilcox v. Wood, 9 Wend. E. 346.) In England, 
 the courts have been vacillating for centuries between two opposite 
 constructions, where a deed is to commence yrom the dale ox from 
 the day of the dale — sometimes holding that the day of the date 
 is inclusive, and sometimes exclusive. Lord Mansfield's doctrine 
 was, that there is no difierence between the two forms of expres- 
 sion, and whether the day of the date is included or excluded 
 depends on the subject-matter of the instrument, and the intention 
 of the parties. But that a custom relating to leases and when 
 the lessee is entitled to possession is valid, seems to be conceded or 
 admitted in that kingdom. ( Vide Doe v. Snowdon, 2 Black. R. 
 1225. Lester v. Garland, 15 Yes. Jr. E. 248. Castle v. Burditt, 
 6 Term E. 623.) But it has been settled in this country, and 
 especially in the state of New York, in accordance with the above 
 rules. {Vide Snydsr V.Warren, 2 CoY!.~R.bl9>. Ex parte Dean, 
 lb. 605. Sims v. Hampton, 1 Serg. & Eawle's E. 411. Browne 
 V. Browne, 3 ib. 496. Presbrey v. Williams, 15 Massachusetts 
 E. 193.) 
 
 A very proper rule in such a case was adopted by the superior 
 court of New York, wherein the lease was for the term of ten 
 years, to commence on the first day of May, 1852, and to end on 
 the first day of May, 1862. The assignee of the lessee underlet 
 the premises to a party from the first day of May, 1856, to the fii'st 
 day of May, 1862, and then assigned the original lease to still 
 andther party. The court held, that the original lease was to be 
 construed as expiring at twelve o'clock at noon of the first of May, 
 1862, and the sub-lease as expiring at twelve o'clock at night of 
 the thirtieth of April, 1862. And that, consequently, there was 
 a period of time between the end of the thirtieth of April and 
 twelve at noon of the first of May, during which the final assignee 
 of the original lease had the right of re-entry and of possession of' 
 the premises. {The People v. Robertson, 39 Barb. E. 9.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 211 
 
 In a late case in the supreme court of the United States, Justice 
 Field, who delivered the opinion of the court, said : " The general 
 current of the modern authorities on the interpretation of con- 
 tracts, and also of statutes, whpre time is to be computed from a 
 particular day or a particular event, as where an act is to be per- 
 formed within a specified period from or after a day named, is to 
 exclude the day thus designated, and to include the last day of the 
 specified period." {Sheets v. Seldcm's Lessee, 2 Wallace's E. 177, 
 190.) And Chief-Justice Bronson, in a case before the supreme 
 court of the state of New York, laid down the rule, that " where 
 the period allowed for doing an act is to be reckoned from the 
 making of a contract, or the happening of any other event, the 
 day on which the event happened may be regarded as an entirety, 
 or a point of time ; and so be excluded from the computation." 
 {Cornell v. Moulton, 3 Denio's E. 16. Vide also Bigelow v. Wil- 
 son, 1 Peck E. 485.) 
 
 Having briefly considered the relation of landlord and tenant, 
 and given a definition of the different tenancies existing, and the 
 terms used in respect to leasehold estates, the way is now clear for 
 a more specific consideration of the points involved in the subject 
 of inquiry. 
 
 I. Consideration of tenancies from year to year. Until the 
 action of ejectment became the regular mode of proceeding in 
 England for the trial of j)ossessory titles, even a tenant, having a 
 lease of land for a "definite period, had not a full and complete 
 remedy when ousted of his possession. Previous to that period, 
 tenants, occupying lands without a specific grant, held them 
 by a still more precarious tenure. A holding of lands, without 
 any certain or determinable estate being limited therein, was then 
 considered as a holding at the will and pleasure of the owner of 
 the land ; and the tenant was liable to be ejected, at any moment, 
 by the simple determination of the will of his landlord. But tlie 
 same enlightened policy, which secured to lessees for years the 
 complete possession of their terms, soon extended itself also to 
 those general holdings, then called tenancies at will ; and in the 
 reign of King Henry the Eighth the courts began to hold, that a 
 general occupation should be considered to be an occupation from 
 year to year ; and that the person so holding should not be ejected 
 from his lands, without a reasonable notice from his landlord to 
 relinquish the possession. It was also settled at the same time, 
 
212 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 that this reasonable notice should be a notice for half a year, 
 expiring at the end of tlie tenancy; because, otherwise, a notice, 
 reasonable as to duration, might be given, which would, notwith- 
 standing, operate greatly to the prejudice of the tenant, by eject- 
 ing him from his lands immediately before harvest, or other 
 valuable period of the year ; and it is supposed that this rule has 
 remained unaltered in England to the present day, except when a 
 different time is established, either by express agreement or imme- 
 morial custom. (Adams on Eject. 105, 106. Parker v. Constalle, 
 3 "Wils. E. 25.) 
 
 A general occupation of land now, therefore, in England, inures 
 as a tenancy from year to year, determinable, and necessarily deter- 
 minable by a notice to quit ; and, a holding merely at the will of 
 the landlord, according to the ancient meaning of the term, is an 
 estate unknown in modern time, nnless when created by express 
 agreement between the parties. (Adams on Eject. 106. Doe v. 
 Brown, 8 East's R. 165. Timmins v. Eawlinson, 3 Burr. R. 
 1603-9. Richardson v. Lengridge, 4 Taunt. E. ^28.) There is, 
 indeed, an implied modern tenure, denominated a tenancy at will, 
 in that kingdom, but it differs materially from the old tenancy, so 
 called, and in truth is scarcely distinguishable from a mere per- 
 missive occupation of the land, independent of the relationship 
 of landlord and tenant. This kind of tenancy arises when the 
 party is in possession of the premises with tlie privity and consent 
 of the owner, no express tenancy having been created, and no act 
 having been done by tlie owner impliedly acknowledging sucli 
 party as his tenant ; as where he has been let into possession pend- 
 ing a treaty for a purchase or a lease, or under a lease or agree- 
 ment for a lease, which is void, or as the minister of a dissenting 
 congregation, or when, having been tenant for a term which has 
 expired, he continues in possession, negotiating for a new one. In 
 all these cases and the like, it is held that the party, being lawfully 
 in possession, cannot be ejected until such lawful possession is 
 determined, either by demand of possession, breaking off the 
 treaty, or otherwise, and the party is called a tenant at will ; but 
 in any of these cases, if the landlord receives rent while the party 
 is so in possession, or does any other act amounting to an acknowl- 
 edgment of a subsisting tenancy, a tenancy from year to year will 
 be created thereby. (Adams on Eject. 107, and authorities cited, 
 including, Boe v. Street, 4 Neville & Manning's E. 42. Daniels 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 213 
 
 V. Davidson, 16 Yes. Jr. R. 252. Doe v. Price, 9 Bing. E. 356, 
 Doe V. Turner, 1 Mees. & "Welsb. R. 226. Same case, 9 ib. 643. Doe 
 V. Thomson, 1 Nev. & Per. E. 215. Doe v. Pullen, 2 Bing. K C; 
 749. Doe v. Bell, 5 Term E. 471. Clayton v. BlaJcey, 8 ib. 3. 
 Thurler v. Belcher, 3 East's E. 449, 451. Doe v. Browne, Ib. 165.) 
 It will be observed that the foregoing specifies tiie rule in Eng- 
 land, but it may be affirmed that a similar rule npon the subject 
 has been adopted in the American states. {Chamberlain v. Pratt, 
 33 K Y. E. 47, 49.) Says Mr. Washburn : "The necessity of 
 giving notice in order to determine a tenancy at will, which has 
 become so general, has reduced the class of estates held strictly at 
 will, to comparatively few in number. They still exist in certain 
 cases, and form a second division of this subject. They are divi- 
 ded into two classes, such as are made so by express agreement of 
 the parties, and sucli as are created by implication of law." And 
 again : "Because of the uncertainty of the rule requiring reason- 
 able notice in order to determine a parol lease, and from the cir- 
 cumstance that rent was generally measured by the year, courts 
 early adopted a rule, which has been extensively followed in this 
 country, that a general tenancy by a parol lease, when rent is to 
 be paid, shall be considered as a lease for a year, which can only 
 be determined by a notice for the time of at least six months, 
 terminating at the expiration of the year. And if the tenant is 
 allowed to hold without such notice, into a second year, it will be 
 considered as a holding for such second year, and so on. So that 
 the common mode of designating such estates by parol, is an estate 
 from year to year, to continue till either party gives the other the 
 requisite notice to determine it." (1 Wash, on Eeal Prop., 510, § 1, 
 sub. 22, and pp. 519, 520, § 2, sub. 1, wherein several authorities are 
 cited, both English and American, including Lesleyv. Randolph, 4 
 Eawle's E. 123. Right v. Darby, 1 Term E. 159. Ridgeley v. 
 StillAJoell, 28 Mo. E. 400, Patton v. Aodey, 4 Jones' L, E. 440.) 
 A tenancy at will is held to be a tenancy from year to year, merely 
 for the sake of a notice to quit; and the landlord cannot recover 
 possession without the notice ; but this notice is not necessary for 
 any other purpose. {Phillips v. Covert, 7 Johns. E. 4.) In 
 respect to the terms on which the tenant will be considered as 
 holding after the tenancy at will ceases, the rule seems to be, that 
 when there is no new stipulation, an implication arises of a tacit 
 consent on both sides, that the tenant shall hold from year to year 
 
214 LAW OF EJECTMENT AM) ADVERSE ENJOYMENT. 
 
 at the former rent. {Doe v. Bell, 5 Term E. 472, per Ld. Kenyon, 
 Ch. J. Moon V. Beasley, 3 Ham. E. 294. Aheel v. EadcUff, 15 
 Johns. E. 505. Frouty v. Wood, 2 Hill's S. C. K. 367. Brewer 
 V. Knapp, 1 Pick. E. 332. Ellis v. Paige, lb. 43.) But, not- 
 ■withstanding the general rnle, that where a tenant holds over after 
 the expiration of the term, he is considered as holding for the 
 same rent, and payable at the same time, the rule is otherwise 
 "when there are stipulations in the expired lease, on both sides, that 
 can only be performed the first year. {JDiller v. Roberts, 13 Serg. 
 & Eawle's E. 60.) The manner of terminating a tenancy at will, 
 has been regarded as of but little consequence ; for the reason that 
 it leaves the landlord, as to the rent, in the same situation as before, 
 and imposes the necessity of the requisite notice to quit on the 
 day of the year corresponding to that on which the first notice 
 expires. Without this, the landlord would still be unable to main- 
 tain an ejectment. {Doe v. Bell, supra. Bradley v. Covel, 4 Cow. 
 E. 349.) 
 
 A tenant for one year holding over after the expiration of this 
 term, is a tenant from year to year, and entitled to notice to quit 
 before an ejectment can be brought against him. And a person 
 coming into possession of the demised premises under such tenant, 
 stands in the same relation to the landlord as the original tenant, 
 and is also entitled to notice to quit before the action can be 
 brought. {Jackson v. Salmon, 4 Wend. E. 327.) The case was 
 disposed of by the supreme court in a very few words, and the 
 opinion is worth quoting. Savage, Ch^ J., saying : " The only 
 question in the case is whether the defendant was entitled to 
 notice to quit. Wells entered into possession lawfully ; he hired 
 the premises for one year, and continued in possession after that 
 period ; he was tenant from year to year, and was entitled to 
 notice before an ejectment could be brought against him. The 
 defendant, coming in under Wells, stands in the same relation to 
 the lessor. A tenant for a year, holding over, is tenant from year 
 to year, and not at will ; but if at will, he was entitled to notice." 
 
 There has been considerable confusion in the books in respect to the 
 cases in which a notice to quit is necessary, before taking proceed- 
 ings to remove the tenant. In a very early case in the supreme 
 court of New York,, it was held that a mere tenant at will cannot 
 require notice to quit. It was then said that the reservation of 
 annual rent is the leading circumstance that turns leases for 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 215 
 
 uncertain terms, into leases from year to year. {Jackson v. Bradt, 
 2 Caines' E. 174.) 
 
 In a case decided by the same court, in 1806, it appeared that the 
 defendant had been in possession of the premises in question more 
 than thirty years, with the permission of the owner, and then refused 
 to talce a lease, saying he meant to keep the premises ; that he 
 thought his title as good as the lessor's. On the trial the plaintiff 
 was nonsuited for want of a notice to quit. Tompkins, J. going 
 the length of saying that a tenant at will is entitled to notice. 
 Thompson, J. dissented. Spencer, J. delivered the opinion of the 
 court. He held that after so long an occupancy, under the circum- 
 stances, notice ought to be given. He considered the landlord's 
 right to sue for use and occupation, equivalent to the reservation 
 of rent. In this case there was no contract to purchase; but 
 a bare permission to occupy, without any terms or conditions. 
 {Jackson v. Bryan, 1 Johns. E. 322.) 
 
 In another case, decided in the same year, by the same court, 
 Livingston, J., delivered the opinion of the court, and laid down 
 the broad proposition, that no man who holds lands by the owner's 
 consent for an idefinite period ought ever to be evicted by eject- 
 ment without notice to quit. {Jackson v. Longhead, 2 Johns. E. 75.) 
 
 In another case, in the same court, in 1810, Kent, C. J., said, 
 tenancies at will are now held to be estates from year to year, 
 merely for the sake of a notice to quit. He probably intended 
 the remark for cases of actual or express tenancies at will ; for 
 such appears to have been the case then before the court. The 
 persons under whom the defendant claimed had taken the prem- 
 ises for no definite period, but while they behaved well and paid 
 rent. This was really a tenancy at will ; though the court inti- 
 mated it would be a tenancy from year to year for the purpose of 
 a notice to quit. {Phillips v. Covert, 7 Johns. E. 4.) 
 
 In another case, decided in the same court in 1812, the defend- 
 ants occupied more land than was covered by their lease ; for which 
 excess the action was brought. The court held, a notice was neces- 
 sary, on the ground that rent had been paid as well for that part 
 of the farm as for so much as was included in the lease. And the 
 remark was also made, that, in the English courts, tenants at will 
 are entitled to notice to quit. {Jackson v. Wilsey, 9 Johns. E. 335.) 
 
 Several other cases came before the supreme court of New York 
 between the years 1812 and 1827, in which the question of notice 
 
216 LAW OF EJECTMENT AND ADVERSE ENJOTMENT. 
 
 to quit was discussed and passed upon ; but very seldom with any 
 thing like unanimity between the different members of the court. 
 In 1827, however, tlie court unanimously decided that a notice to 
 quit is necessary, before the landlord can bring ejectment against 
 his tenant from year to year or at will, unless some act has been 
 done which determines the tenancy ; and so, generally, wherever 
 the tenant enters into possession with the assent of the landlord, 
 no definite period being fixed for the continuance of the possession. 
 The chief-justice, who delivered the opinion of the court, said : 
 " The general rule here is, that tenancies at will are to be con- 
 sidered as tenancies from year to year, merely for the sake of a 
 notice to quit ; but this seems to be subject to the exception of a 
 tenancy at will created by an entry under a contract for purchase. 
 In all the cases of this kind which I have found in our own books, 
 notice has been held to be unnecessary." {Jackson v. Miller, 7 
 Cow. E. 747, 751, 752.) 
 
 In England, the rule is different in relation to a purchaser. There 
 a tenant at will seems to be entitled to notice ; and Lord Ellen- 
 borough said, that, after the lessor had put the defendant into pos- 
 session, lie could not, without a demand of possession, and a refusal 
 by the defendant, or some wrongful act by him to determine his 
 lawful possession, treat the defendant as a wrong-doer and tres- 
 passer, as he assumes to do by the action of ejectment. {Right v. 
 Beard, 13 East's E. 210, 211.) 
 
 But, in this country, it is generally held, that a vendee is not 
 ■entitled to notice to quit, though he enter into possession of the 
 land by the assent of the vendor ; and' that ejectment may be 
 maintained against a vendee thus entering who fails to perform 
 his part of the contract under which he enters, on showing notice 
 from the vendor that the contract is at an end. {Jackson v. Mon- 
 crief, 5 Wend. E. 26. And vide Whiteside v. Jackson, 1 ib. 418. 
 Wright v. Moore, 21 ib. 230. Jackson v. Miller, 7 Cow. E. 747. 
 Saine Case, 6 Wend. E. 228. Maynardh Lessee v. Calle, Wright's 
 Ohio E. 18.) But this particular branch of the subject has been 
 discussed in a previous chapter, to which reference may be had. 
 {Ante, ch. 9.) 
 
 Of course, before a demandant can maintain ejectment against a 
 tenant, the term must have actually expired, according to the 
 terms of the lease under which the premises may be held or the 
 landlord must be in a situation to, and actually does, put an end 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 217 
 
 to the tenancy. {Jackson v. Hughes, 1 Blackf. E. 421.) In other 
 ■word8, unless the term has actually expired, or the tenant forfeit 
 his lease, the landlord cannot bring ejectment. {Penn y. DiveUin, 
 2 Yeates' E. 309.) 
 
 But it is necessary to consider further those particular caises in 
 ■which implied tenancies from year to year are created, although 
 the direct relationship of landlord and tenant may not exist. The 
 subject has already received considerable attention, but there are 
 other eases and instances of the character indicated which may be 
 properly referred to. 
 
 The position of mortgagor and mortgagee is something akin to 
 that of landlord and tenant, but it is settled law that the mort- 
 gagor is not in the position of a yearly tenant to his mortgagee, 
 and that a mortgagee may maintain ejectment against the mort- 
 gagor, 'after the forfeiture of the mortgage, without any previous 
 notice to quit, or demand of possession. This is the rule in Eng- 
 land, and in many of the states ; while in some of the states the 
 mortgagor is entitled to notice to quit previous to an action of 
 ejectment by the mortgagee to oust him of the possession ; and 
 in still others of the states ejectment will not lie in case of mort- 
 gages at all. ( Vide Doe v. Giles, 5 Bing. K. 421. Same Case, 2 Moore 
 & Payne's K. 749. Jackson v. Longhead, 2 Johns. E. 75. Jach- 
 son V. Green, 4 ib. 186. Wilson v. Hooper, 13 Vt. E. 653. Jjy- 
 man v. Mower, 6 ib. 345. Fuller v. Wadsworth, 2 Ired. E. 263. 
 WilUams v. Bennett, 4 ib. 122.) 
 
 The under lessees of the mortgagor may also be ejected in like 
 manner, provided they have been let into possession by the mort- 
 gagor subsequently to the mortgage, and without the privity of 
 the mortgagee ; and it is immaterial whether they hold as tenants 
 from year to year, or by leases executed after the date of the mort- 
 gage. And in those states in which it has been held that a mort- 
 gagor himself is entitled to notice to quit before ejectment can be 
 brought, it is held that a purchaser from the mortgagor is not 
 entitled to the notice, because the relationship of landlord and 
 tenant does not exist between him and the mortgagee. {Jackson 
 V. Chase, 2 Johns. E. 84. Jackson v. Fuller, 4 ib. 215. Jackson 
 V. Hopkins, 18 ib. 487. Jackson r. Stackhouse, 1 Cow. E. 122. 
 Thimder v. Belcher, 3 East's E. 449.) If the tenant in possession 
 holds under a lease from the mortgagor executed subsequent to 
 the mortgage, the mortgagee is entitled to his ejectment after 
 28 
 
218 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 default of the mortgagor, in the same manner as though the tenant 
 in possession was an actual purchaser of the premises from the 
 mortgagee. {Den v. Stockton, 7 Halst. E. 322.) 
 
 The assignees of the mortgagee may also bring ejectment to 
 recover the premises in the same cases in which their assignors 
 might have had their action but for the assignment ; although it 
 has been sometimes held that the assignment should be recorded 
 before the action can be brought. {Pratt v. Banh of Bennington, 
 10 Vt. 253, 293.) The same principle prevails in England with 
 respect to claimants under writs of elegit, as in the case of mortgag- 
 ors and mortgagees, if the judgment debtor be himself in possession, 
 or if the party in possession has been admitted tenant subsequently 
 to the date of the judgment, whether as a yearly tenant or under 
 lease, the tenant by elegit may maintain ejectment without notice 
 to quit or demanding possession. {Doe v. Wharton, 8 Term R. 2. 
 Doe V. HiUer, 2 Barn. & Aid. E. 782.) The right of mort- 
 gagees and tenants by elegit to bring ejectment in general has 
 been stated in a previous chapter, and hence it is unnecessary, 
 perhaps, to dwell longer upon the subject in this place. ( Yide 
 ante, ch. 9.) 
 
 When a party has obtained possession of premises belonging to 
 another, and the owner d^es any act front which a jury may infer 
 that he intends to acknowledge him as his tenant, as has been 
 before intimated, a tenancy from year to year is created by such 
 act, and the party will be entitled to a regular notice to quit, 
 before he can be ejected. And it has been accordingly held, that 
 if the lessor allows the tenant to remain in possession seventeen 
 years after the expiration of the lease, he cannot recover in eject- 
 ment without notice to quit. {Bedford v. McElherron, 2 Serg. 
 & Eawle's E. 49.) But this case will hardly answer for an illus- 
 tration, from the fact, that, under certain circumstances, a permission 
 to hold over for a very short time, for example, a few months, after 
 the expiration of the lease, and especially if the landlord should 
 receive rent from the tenant, accruing subsequently to the period 
 of such expiration, such tenant thereby becomes a tenant from 
 year to year, upon the conditions of the original lease. {Bishop 
 V. Howard, 2 Barn. »& Ores. E. 100.) In like manner, when a 
 party lias been let into possession under a void lease, payment and 
 receipt of r&nt will not establish the lease, but it will create a 
 tenancy from year to year, regulated by its covenants and condi- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 219 
 
 tions. {Doe v. Bell, 5 Term R. 471. Clayton v. Blakey, 8 ib 3. 
 Doe V. Terry, -4. Adolph. & Ell. E. 274. .i)o6 v. Coolcell, Ib. 478. 
 Doe V. Arney, 12 ib. 476.) This is the doctrine in England, and 
 the same rule has been recognized in this country, where it' has 
 been held, that though a parol demise for seven years be void by 
 the statute of frauds, yet it inures as a tenancy from year to year, 
 'if the tenant enter and hold under it; and that such lease will 
 regulate the terms of the tenancy in other respects, as the rent, 
 and the time of year when the tenant must quit. {Schuyler v. 
 Leggett, 2 Cow. E. 660. And vide Morehead v. Watkyns, 2 B. 
 Mon. E. 228.) But although a tenancy from year to year is ordi- 
 narily implied in favor of the owner, against one who enters under 
 a parol demise for a term of years, void by the statute of frauds ; 
 yet where the entry is under an agreement by the owner to execute 
 a valid lease in writing, for the tei"m; and he afterward, in bad 
 faith, refuses to execute it, repudiates the relation of landlord and 
 tenant, and within the year resumes dominion over the property, 
 he is barred by his election, and has no remedy on an implied 
 agreement for intermediate use and occupation. {Groton v. Smith, 
 36 N. T. E. 245.) And yet, in this case, but for the disclaimer 
 of the agi'eement by the landlord, and his interference with the 
 possession of the tenant, he could have held the tenant to respond 
 for the use and occupation of the premises, under the rule, which, 
 at the election of the landlord, gives effect to a parol lease, void 
 by the statute of frauds, by implying a tenancy from year to year. 
 
 An oral agreement, by which the tenant, under a written lease 
 for five years, relets a portion of the demised premises to his land- 
 lord for the same term, was held, by the New York court of 
 appeals, to inure, under the statute of frauds, as a demise from 
 year to year. {Zounsiury v. Snyder, 31 N. Y. E. 614.) 
 
 The same rule prevails where a party is let into possession 
 under a valid agreement for a future lease. No tenancy is created 
 by the agreement, because no interest in the land passes under it ; but 
 the party being let into possession, and rent being paid and received, 
 the party becomes a tenant from year to year, as in the other 
 cases mentioned, according to the stipulations of the agreement. 
 {Doe Y. Avery, 12 Adolph. & Ell. E. 476.) In an early case in 
 England, it was held that an agreement for a Zease was tantamount 
 to a lease, and that the party making the agreement was estopped 
 from maintaining ejectment against the other party, although he 
 
220 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 had given liim a regular notice to quit, because " if the court were 
 to say the ejectment ought to prevail, it wonld be merely for the 
 sake of giving the court of chancery an opportunity to undo all 
 again. " ( Weakly v, Buckncll, Cowp. R. 473.) And in another case 
 a similar agreement was held to form no defense to an ejectment 
 brought by a party to whom the party making the agreement had 
 granted a term in the premises to satisfy creditors, subsequently to 
 the date of the agreement, although no notice to quit had been given, 
 and the party had paid rent under the agreement ; because the 
 conveyance, being made by the lessor to a trustee, for the benefit 
 of creditors, " was not a mere voluntary conveyance," and, there- 
 fore, the lessee could not be considered as a trustee for the defend- 
 ant, and as such restrained " from bringing ejectment against his 
 own cestui que trust ; " and the agreement for the lease " gave the 
 defendant only an equitable title, which cannot be set up in a 
 court of law against the plaintiff who has a legal title." {Good- 
 title V. Way, 1 Term E. 735.) 
 
 These two cases last referred to were decided in the time of 
 Lord Mansfield, and it has been well said by Mr. Adams, that 
 they illustrate the unsettled state of the principles and uses of the 
 action of ejectment at that period. Upon the sonnd principles by 
 wliicli the action is now regulated, it is evident that the two deci- 
 sions should have been reversed. In both cases the agreement for 
 tlie lease and the receipt of rent under it would have been held 
 to create tenancies from year to year, which would have been 
 determined in the first case of the notice to quit, and would have 
 continued in the latter for the want of such notice. (Adams on 
 Ejectment, 112, note a.) 
 
 In a late case decided in the English court of common bench, 
 the question of construing agreements in relation to lands, so as 
 thereby to create tenancies from year to year, was thoroughly 
 examined. By articles of agreement between the parties, the 
 alleged tenant was to go on and erect certain buildings upon the 
 land, when the owner was to give the party a lease of the premises 
 for the term of ninety-eight years, upon the payment of certain 
 specified rents, to be reserved in the lease. Intervening the date 
 of the agreement and the erection of the buildings, the alleged 
 tenant was permitted, under the articles, to enter upon the land 
 and devote it to the purposes contemplated in the agreement ; and 
 for this right he was to pay an annual sum, until the lease should 
 
XJECTMENT AS BETWEEN LANDLORD AND TENANT. 221 
 
 be granted. The alleged tenant assigned his interest in the 
 agreement, and his assignee entered and occupied the land, erected 
 buildings thereon, and paid the stipulated yearly sums, and then 
 assigned his interest in the agreement to still another party. Tlie 
 court held that neither the original party claiming possession of 
 the land, nor his assignees, acquired any estate in the premises 
 under the building agreement; nor was any tenancy from year to 
 year created therebj^ or by the occupation of the land and pay- 
 ment of the stipulated sums. {The Marquis of Camden v. Bat- 
 terbury, 5 J. Scott's N. S. E. 808.) 
 
 As has been before intimated, where a party enters under an 
 agreement for a lease, and continues in possession during the period 
 for which, by the agreement, the lease was to be granted, his 
 tenancy ceases at the expiration of that period, without any notice 
 to quit, as it would have done if a lease had been executed. The 
 rule in this case is the same as when the entry and continuance 
 are held under a void lease, hereinbefore referred to. (Boe v. 
 Strattm, 4 Bing. E. 446.) 
 
 In these eases the acknowledgment of the tenancy is usually by 
 the payment and receipt of rent, which is the ordinary evidence in 
 cases of this nature ; but the intention to create such a tenancy 
 may also be inferred froift other circumstances. Any thing trans- 
 piring between the landlord and tenant, really indicating the 
 intention of the parties to create a tenancy, or amounting to an 
 acknowledgment of the relation of landlord and tenant, will be 
 regarded as sufficient to establish the tenancy. ( Vide Doe v. 
 Morse, 1 Barn. & Adolph. E. 365. Doe v. Nodler, 2 Esp. E. 528. 
 Doe V. Biggs, 1 Taunt. E. 367.) 
 
 Where a tenant under a demise for a year or more holds over 
 after the end of his term, without any new agreement with the 
 landlord, he may be treated as a tenant from year to year, and in 
 all other respects as holding upon the terms of the original lease. 
 The landlord has an election to treat him either as a trespasser or 
 as a tenant. He will be a trespasser if the landlord brings eject- 
 ment to recover the possession. He will be a tenant if the land- 
 lord either receives or distrains for rent, accruing after the end of 
 the original term ; and when he neither says nor does any thing, 
 his acquiescence in the tenancy may probably be inferred from the 
 mere lapse of time. {Conway v. Starlctoeather, 1 Denio's E. 113.) 
 The holding over, however, in such case, must be continued for 
 
222 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 6uch length of time, after the expiration of the term, as to author- 
 ize the implication of assent 'on the part of the landlord to such 
 continuance. And, in one case, where a landlord waited three 
 months and twelve day's before instituting proceedings to remove 
 the tenant, it was held, that he was not chargeable with laches, 
 especially as it appeared that he had attempted to obtain posses- 
 sion without recourse to coercive measures. {Rowan v. Lytle, 11 
 Wend. E. 616.) If the tenant holds over at all after the end of 
 the term, he is regarded as a tenant at sufferance ; and, if the 
 landlord permits the tenancy at sufferance to continue for such 
 length of time as to imply assent, the tenant becomes a tenant 
 from year to year, and cannot be removed except upon service 
 of notice to quit. 
 
 And where a part}'- has put another into possession, with a view 
 to future tenancy or purchase, or under circumstances of a similar 
 nature, although he may have done no act acknowledging a regu- 
 lar tenancy, he cannot afterward eject him without a demand of 
 possession, unless some wrongful act has been done by such party 
 determining his lawful possession. Very many cases may be cited 
 as illustrating and establishing this principle ; but the rule is so 
 obviously equitable and just, that no citations would seem to be 
 necessary. (But vide Doe v. SomermU^ 6 Barn. & Ores. E. 126. 
 Doe V. Carter, 1 Eyaa & Moody's E. 237. Doe v. Boulton, 
 6 Maule & Selwyn's E. 148-50. Hiffht v. Beard, 13 East's E. 
 210. Doe V. Stewart, 2 Esp. E. 716.) But where the vendor of a 
 term, after payment of part of the purchase-money, let the pur- 
 cliaser into possession, upon an agreement that such purchaser 
 should have possession of the premises until a given day, paying 
 the reserved rent in the meanwliile, and that, if he should not pay 
 the residue of the purchase-money on that day, he should forfeit 
 the installments already paid, and not be entitled to an assignment 
 of the lease; and the purchaser failed to complete the purchase at 
 the appointed day ; the court ruled, that an ejectment might be 
 maintained without even a demand of possession, for the reason 
 that the purchaser had, by his own act, determined his interest in 
 the premises. {Doe v. Sayer, 3 Camp. E. 8. Doe v. Lawder, 
 1 Stark. E. 308.) And where a man obtained possession of a 
 house without the landlord's privity, and afterward entered into 
 negotiation with him for a lease, the landlord was permitted to 
 recover the premises in ejectment without demand or notice to 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 223 
 
 quit. {Doe v. Quigley, 2 Camp. R. 506.) So, where, npon an 
 agreement for a sale to be completed bj a certain day, the intended 
 purchaser agreed with A to let the premises to him, to commence 
 from that day, and A was let into possession prior to that day by 
 permission of the intended seller, and the party failed to complete 
 his purchase, A was held not entitled to a demand of possession 
 before ejectment brought, his possession being only the possession 
 of that party by anticipation. {Doe v. Boulton, 6 Maule & Selw. 
 E. 148.) 
 
 In all cases where tenancies O'om year to year are implied from 
 the acts of the parties, or the acquiescence of the landlord, it is 
 competent to produce evidence to rebut the presumption that 
 such was the intention of the parties; and it is peculiarly the 
 province of the jury to decide, under all the circumstances of 
 such case, whether the tenancy exists or not. ( Vide Hoe v. Pri- 
 dsaux, 10 East's E. 158. Jachson v. Bryan, 1 Johns. E. 322, 
 326, 327.) If the tenant set his landlord at defiance, and do any 
 act disclaiming to hold of him as tenant, this dispenses with the 
 necessity of a notice to quit ; for in such case the landlord may 
 treat the tenant as a trespasser. {Jackson v. Wheeler, 6 Johns. E. 
 272. Bates v. Austin, 2 A. K. Marsh. E. 270. Boss v. Garri- 
 son, 1 Dana's E. 35. TuttU v. BeynoUs, 1 Yt. E. 80.) For ex- 
 ample, should the tenant from year to year claim the premises 
 described as his own, under a title adverse to that of his landlord, 
 or attorn to some other person, the landlord may consider his 
 tenant as a wrong-doer, and bring ejectment and regain the pos- 
 session of the premises. The acts of the tenant in such case are 
 conclusive upon him, and the relation of landlord and tenant is 
 thereby dissolved. ( Wallison v. yfatldns, 3 Peters' E. 43. Vide 
 also Cwrrier v. Earl, 1 Shepley's E. 216. Greene v. Munson, 9 
 Yt. E. 37. NoHlh V. Barnum, 10 ib. 220. ITaU v. Dewey, lb. 
 593. Tillotson_ v. Doe, 5 Ala. E. 407. Fa/rrow v. Bdmondson, 4 
 B. Monroe's E. 605. Wilson v. Smith, 5 Yerger's E. 379. Mont- 
 gomery V. Craig, 3 Dana's E. 101. Hockenlurg v. Snyder, 2 
 Watts & Serg. E. 240. Jackson v. Whitbeck, 3 Johns. E. 422.) 
 
 In a late case decided in the English common bench, it 
 appeared that certain parish lands had been let to the laboring 
 inhabitants at a forehand rent of four shillings per acre ; the lands 
 having been afterward inclosed, the churchwardens and overseers, 
 for the time, increased the rent to twelve shillings per acre, 
 
224 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 for the purpose of raising a fund to pay the expenses of the 
 inclosure. Tlie tenants, having paid this increased rent for many 
 years, conceiving that the inclosure expenses had been paid off, 
 insisted that they were entitled to hold the land at the original 
 rent of four shillings per acre, and refused to pay the twelve shill- 
 ings ; the court held, that this did not amount to a disclaimer of 
 the landlords' title, so as to enable them to eject the tenants with- 
 out notice, and that a tenancy from year to year might be implied 
 from the circumstances under which the parties had held. {Sunt 
 V. Allgood, 10 J. Scott's K S. E. ^53.) ^ ■ 
 
 Where a landlord applied to his tenant for the payment of 
 rent, and the tenant replied to the demand, "you are not my 
 landlord," and, on the landlord then demanding possession of the 
 demised premises, refused to give up possession, this the court 
 held to amount to a disclaimer, and entitled the landlord to his 
 action of ejectment. {Doe v. Long, 9 Carr. & Payne's E. 773.) 
 So also, to a demand of rent by an agent of the landlord, the 
 tenant replied that his connection with the landlord as tenant had 
 ceased for many years, has been held sufficient evidence of an 
 antecedent disclaimer, and entitled the landlord to his action for 
 tlie premises. {Doe v. Gruble, 10 Barn. & Cres. E. 816.) But a 
 refusal to pay rent to a derisee under a contested will, accompa- 
 nied with a declaration that he, the tenant, was ready to pay the 
 rent to any person who was entitled to receive it, was very prop- 
 erly held not to be a disavowal sufficient ■ to dispense with the 
 necessity of a regular notice to quit. {Doe v. Pasquali, Peake's 
 E. 196.) 
 
 "Where, however, a person held under a tenant for life, and in 
 reply to a letter from the heir of the tenant for life, after his deatli, 
 demanding rent, stated that he held the premises as the tenant of 
 another person, and that he never considered himself as the tenant 
 of the lessor of the plaintiff, avowing himself ready and willing 
 to pay rent to the person wlio should be proved entitled to it, 
 without disputing the pedigree of the lessor of the plaintiff; this 
 was held a disclaimer of the title of the lessor of the plaintiff. 
 {Doe V. Froiod, 4 Bing. E. 557.) 
 
 Where a party conveyed to another a parcel of land, and took 
 a mortgage from the purchaser on the same land, to secure the 
 purchase-money ; and the grantee then consented to sell the land 
 to a third person, who took possession; afterward the original 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 225 
 
 grantor and grantee agreed to cancel their respective deeds, which 
 was accordingly done, and the deed for the land thus canceled 
 was returned to the grantor, and the mortgage thus canceled was 
 also returned to the grantee. In ejectment brought by persons 
 claiming under a conveyance from such original grantor, against 
 the vendee of such original grantee, the court held, that the action 
 could be maintained, and that the defendant, not being a tenant 
 or mortgagee, was not entitled to a previous notice to quit. (Jack- 
 son V. Chase, 2 Johns. E. 84.) 
 
 So, also, it has been held, that in an action of ejectment brought 
 by a mortgagee against a purchaser of the interest of the mortr 
 gagor, or against a third person, between whom and the mortgagor 
 there is no privity of contract or estate, a previous notice to quit 
 is not necessary. (Jackson v. Foster, 4 Johns. E. 215. Jackson 
 V. Stackhouse, 1 Cow. E. 122. And vide Thunder v. Belcher, 3 
 East's E. 44:9.)- 
 
 Where a landlord, by his attorney, executed a lease to his tenant 
 for three years, and after the expiration of the term, the tenant 
 applied to the attorney of the landlord to know if he was author- 
 ized by the landlord to enter into a new agreement, who replied 
 that he was not, but said that such tenant might remain in posses- 
 sion of the premises until he heard from the landlord ; the court held 
 that the tenant, after the expiration of the original term, was a mere 
 tenant at sufferance, and was not entitled to notice to quit, previous 
 to an action of ejectment. (Jackson v. Parkhurst, 5 Johns. E. 128.) 
 
 Where a parol agreement provided for the renting of premises 
 for one month from the first of August, 1866, and for each success- 
 ive month thereafter, until the landlord should want the premises 
 for his own use, whereupon the tenancy should expire, the court 
 held that the usual notice was not required to terminate the ten- 
 ancy. It would be sufficient, undoubtedly, in such a case, for the 
 landlord to inform the tenant, within a reasonable time before the 
 expiration of any month, that he wanted the premises for his own 
 use. Such a tenancy can hardly be called a tenancy at will or by 
 sufferance, created by the tenant's holding over, or otherwise. It 
 is an agreement for an indefinite number of months, subject to be 
 terminated by a notice from the landlord that he wants the prem- 
 ises. (The People v. Schackno, 48 Barb. E. 551.) 
 
 A tenant at will is considered as holding from yeas? to year only 
 tor the purpose of. a notice to quit, as has been before remarked; 
 29 
 
226 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 but it is decided that he has no right to such notice after he has 
 determined the tenancy by an act of voluntary waste. {Phillips 
 V. Covert, 7 Johns. E. 1. Jackson v. Bradt, 2 Gaines' E. 169. 
 But vide Jadkson v. Wilsey, 9 Johns. E. 267.) 
 
 Where a lease was assigned, and a bond executed at the same 
 time, which stated that the assignment was made to secure a debt 
 due to the assignee, and an agreement to re-assign the lease and 
 premises, on payment of tlie money with interest, it was held to 
 be a mortgage, and that the mortgagor was entitled to a notice fo 
 quit, before bringing an action of ejectment against him. {Jachson 
 V. Green, 4 Johns. E. 186.) 
 
 When a tenant from year to year dies, his interest in the land 
 vests in his personal representatives, who will continue to hold the 
 premises upon the same terms as the original tenant, and be entitled 
 to the same notice to quit. {Doe v. Porter, 3 Term E. 13. ParTter 
 V. Constable, 3 Wils. E. 25.) If, however, by the terms of the 
 agreement, no interest vests in the representatives, no notice to 
 quit will be necessary. {Doe v Smith, 6 East's E. 530.) 
 
 In like manner, the situation of a tenant from year to year 
 remains unaltered, notwithstanding the death of the landlord, and 
 he will be entitled to his regular notice to quit, whether the lands 
 descend to the heir, even though the heir be a minor, or pass to the 
 personal representatives or devisee of the deceased. {Maddon v. 
 White, 2 Term E. 159.) 
 
 Such are some of the rules in respect to tenancies from year to 
 year, and the notice by which they are terminated. More. particu- 
 lars will be given in regard to the notice to quit, and the parties 
 thereto, in a subsequent chapter. 
 
 CHAPTEE XII. 
 
 THE ACTION OP EJECTMENT AS BETWEEN LANDLORD AND TENANT 
 
 THE PERSONS BY WHOM AND TO WHOM THE NOTICE TO QUn IS TO 
 BE GIVEN — EULE8 EE8PECTING NOTICES TO QUIT. 
 
 I. It may be affirmed in general terms that the notice to quit must 
 be given by the person interested in the premises, by himself per- 
 sonally, or by his duly authorized agent. If by the agent, it must 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 227 
 
 appear that he is clothed with the power to give the notice at the 
 time when the notice is given. The rule in this respect is different 
 from that which ordinarily governs between principal and agent. 
 Ordinarily it is suflScient if it appears that the principal ratifies the 
 act of his agent after the act has transpired. But in this case a 
 subsequent assent on the part of • the landlord is not sufficient to 
 establish by relation a notice given in the first instance with his 
 authority. And this principle is founded in reason and good sense, 
 for, as the tenant is to act on the notice at the time it is given to 
 him, it ought to be such a one as he may act upon with security ; 
 and if an authority by relation were sufficient, the situation of the 
 tenant must remain doubtful until the ratification or disavowal of 
 the principal, and he would thereby sustain a manifest injustice. 
 (Adams on Ejectment, 126.) 
 
 It has been held that if the notice be given by an agent it is 
 fiuflicient if his authority be subsequently recognized, but the 
 authority of this case has been very properly doubted. {Goodtitle 
 V. Woodward, 3 Barn. & Aid. E. 689.) And it has been held 
 in several cases, that a notice to quit by an unauthorized agent 
 cannot be made good by an adoption of it by the principal after 
 the proper time for giving it. {Doe v Walters, 10 Barn. & Ores. 
 E. 626.) Doe v. Ooldwin, 2 Queen's Bench E. 143.) So a notice 
 to quit by an agent of an agent will not answer the purpose, and 
 will be considered insuflicient with recognition by the principal. 
 {Doe v. Robinson, 3 Bing. IST. C. 677.) 
 
 Notice by parties, or the authorized agents for them, who were 
 church wardens at the time of the agreement to let the premises 
 by the church wardens, has been held to be suflicient, for the 
 reason that the property was decided not to pass to their successors 
 as a corporation, and in the same case it was held that it was 
 immaterial that the notice did not name the parties to whom the 
 possession was required to be given. {Barley v. Feeter, 3 Com. 
 Bench E. 215. Same Case, 54 Eng. C. L. E. 213.) 
 
 Where two or more persons are interested in the premises, a 
 notice to quit given by one, on behalf of himself and co-tenants, 
 will be valid only as far as his own share is concerned, unless he 
 was acting at the time under the authority of the other parties 
 mentioned in the notice. But while this rule applies in cases of 
 tenants in common, it does not apply where the parties are 
 interested as joint-tenants ; because of the rule of law that any 
 
228 LAW OF EJECTMMNT AND ADVUBSE ENJOYMENT. 
 
 act of one joint-tenant which is for the beneiit of his co-joint-tenant 
 shall bind hira, and it must be predicated upon the principle, that 
 the determination of the tenancy by such notice is for the benefit 
 of the estate. And where such tenants in common are interested, 
 as many of them as give notices may 'recover their respective 
 shares, although the others do nOt join, unless, indeed, by the con- 
 ditions of the tenancy, it is rendered necessary for all the parties to 
 concur in the notice, in which case a notice given by some of the 
 parties, without the sanction or authority of their companions, 
 will be altogether invalid. {Doe v. Goldwin, 2 Queen's Bench K. 
 142. Doe V. RoUnson, 3 Bing. ]S". C. 677. Doe v. Walters, 10 
 Barn. & Cres. E. 626, Doe v. Chaplin, 3 Taunt. K. 120. Doe v. 
 Baker, 8 ib. 241. Allford v. VicTcery, 1 Car. & Marsh. E. 280.) 
 
 Where a lease for twenty-one years contained a proviso that in 
 case either landlord or tenant, or their respective heirs and execu- 
 tors, wished to determine it at the end of the first fourteen years, 
 and should give six months' notice in writing, under his or their 
 respective hands, the term should cease ; it was decided that a notice 
 to quit signed by two only of three executors of the original lessor, to 
 whom he had bequeathed the freehold as joint-tenants, expressing 
 the notice to be given on iehalf of themselves and the third executor, 
 was not good under the proviso, which required it to be given under 
 the hands of all these ; neither could such notice be sustained 
 under the general rule of law, that one joint-tenant may bind his 
 companion by an act AoTm for his henefit ; for nan constat that 
 the determination of the lease was for the benefit of the co-joint- 
 tenant ; which it was incumbent on the party who wished to avail 
 himself of it to prove. And the notice to quit being such as the 
 tenant was to act upon at the time, no subsequent recognition of 
 the third executor will make it good by relation ; nor was his join- 
 ing in the ejectment evidence of his original assent to bind the 
 tenant by the notice. G-rose, J., said : " The tenant who took the 
 entire lease of the whole was not bound to accept notice to quit 
 from a part only, but such notice only as was obligatory upon all 
 the joint-tenants. Here, then, was a proviso in the lease, that, in 
 case either party wished to put an end to it at the expiration of 
 the first seven or fourteen years, it should be lawful so to do upon 
 giving the other six months' previous notice in writing under his 
 or their respective hands. That was not done in this instance ; for 
 the notice was only signed by two out of three of the persons 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 229 
 
 interested, and therefore the tenant was not bound by it." Law- 
 rence and Le Blanc, JJ., also gave opinions in the case, agreeing 
 with Grose, Ji, and laying down the law as above indicated. Lord 
 Ellenborough, C. J., stated the rule of law to be, that every act 
 of one joint-tenant which is for the henefit of his co-joint-tenant 
 shall bind him ; but that it is a condition on the part of those who 
 I set it up, and would avail themselves of it as binding, to show that 
 it was 'beneficial to the party neglecting to join in the act ; and 
 that subsequent acts cannot be brought in aid to show it ; it must 
 be done under competent authority at the time. {Right v. Cuthell, 
 5 East's E. 491. But vide Doe v. Mitchell, 1 Broderip & Bing. 
 R. 11. Same Case, 3 B. Moore's R. 229.) 
 
 To the same import is another later decision of the court of 
 king's bench, where it was held, that a proviso in a lease for 
 twenty-one years, that, if either of the parties shall be desirous to 
 determiue it in seven or fourteen years, it shall be lawful for either 
 of them, his executors or administrators, so to do, upon twelve 
 -months' notice to the other of them, his heirs, executors or admin- 
 istrators, extends, by reasonable intendment, to the devisee of the 
 lessor, who was entitled to the rent and the reversion ; and, inci- 
 dentally, it was considered and held, that the words executors or 
 administrators were put for representation in general, and that a 
 notice might be given by an assignee of either party, or by the 
 heir or devisee as well as by the parties themselves, their execu- 
 tors or administrators ; because, otherwise, in case of an assign- 
 ment or devise, the right of determining the terra would be taken 
 from the person interested in it, and given to a mere stranger, hav- 
 ing no interest therein. Lord Ellenborough, C. J., said : " The 
 object of such a proviso manifestly is, that the inheritance should 
 not be bound on the one hand against the will of the persons to 
 whom the inheritance belongs ; and that, on the other hand, the 
 lessee and those claiming under him should not be bound against 
 their will; but that, in all instances, the parties interested, who- 
 soever they may be, should have power to give the necessary 
 notice for this purpose. The intention was not to give a collateral 
 power, to be exercised by a stranger, but to annex certain privi- 
 leges to the term and to the reversion, to pass with such term and 
 with such reversion respectively, and to be exercised by the per- 
 sons, whosoever they might be, to whom such term or reversion 
 should come." {Roe v. Hayley, 12 East's R. 464.) 
 
230 LAW OF EJECTMEXT AND ADVERSE ENJOYMENT. 
 
 The marginal note to another English case is : " To entitle 
 joint-tenants to recover in ejectment against a tenant from year 
 to year, the notice to quit must be signed by all the joint-tenants 
 at the time it is served ; but, if the notice be given by an agent, 
 it is sufficient, if his authority be subsequently recognized ; and, 
 therefore, where such notice was given by an agent, under a 
 written authority, which, at the time of the service of the notice, 
 had been signed only by some of the several joint-tenants, but 
 afterward was signed by all the others : Held, that the subsequent 
 recognition was sufficient to give validity to the authority from the 
 beginning, and that the notice to quit was, therefore, sufficient." 
 {Goodtitle V. Woodward, 3 Barn. & Aid. R. 689.) But Mr. Adams 
 thinks that there is some mistake in the report of the case, and the 
 rule apparently laid down by it is certainly different in some 
 respects than is generally understood to be the law. Mr. Adams 
 says in respect to the case : " According to a note taken by myself, 
 of the judgment of the court, the principle upon which the notice 
 was held sufficient was, ' that a notice to quit, given by one joint- 
 tenant, was binding upon all, because otherwise the lessee would 
 become a joint-tenant with the party giving him notice, by which 
 he would be subject to great inconvenience, and the estate of the 
 co-joint-tenants would be prejudiced; and, therefore, the notice 
 must be taken to be an act beneficial to the estate, and conse- 
 quently binding upon all the joint-tenants ; ' and not as stated in 
 the printed report, that ' a notice given by an agent is sufficient, if 
 his authority is subsequently recognized.' The report is also, I 
 believe, incorrect in stating, 'that, to entitle joint-tenants to 
 recover in ejectment against a tenant from year to year, the notice 
 to quit must be signed by all the joint-tenants at the time it is 
 received;' the reverse of this proposition was, according to my 
 note, maintained, viz. : ' that a notice signed by one joint-tenant 
 was binding upon all,' and, indeed, such must have been the deci- 
 sion if I have taken a correct view of the principle of the judg- 
 ment. Without inquiring into the soundness of that principle, or 
 whether it would not have been wiser to have placed joint-tenants, 
 parceners, and tenants in common, on the same footing with 
 respect to notices to quit, there can'be no doubt it is the only prin- 
 ciple upon which that judgment can be supported with good faith 
 to the tenant ; because, if, after the delivery of the notice, an 
 option remained to the parties who had not then signed the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 231 
 
 authority to confirm or disallow it (as assumed in the printed 
 report), the tenant had not such a notice as he could act upon with 
 certainty, at the time it was given, to which all the authorities say 
 he is entitled ; but such certainly commenced only from the time 
 of the recognition of the authority of the agent by those parties, 
 which might have been only the day before the notice expired ; 
 and, as an option to recognize includes, of necessity, a right to 
 disallow, how can a tenant possibly regulate his conduct as to the 
 management of his farm, etc., if it may be doubtful, until the 
 very day on which his notice expires, whether he will be permitted 
 to go or compelled to stay." This view of the case is undoubtedly 
 correct, and Mr. Adams adds, that the more recent decisions have 
 confirmed its correctness. (Adams on Ejectment, 128, note.) 
 
 As to the propriety of a different rule in the case of a joint- 
 tenancy and that of a tenancy in common, there can be no 
 doubt. The properties of the two estates are in most respects 
 quite different. The properties of a joint-estate are derived from 
 its unity, which is fourfold ; the unity of interest, the unity of 
 tide, the unity of time, and the unity of possession y or, in other 
 words, joint-tenants have one and the same interest, accruing by 
 one and the same conveyance, commencing at one and the same 
 time, and held by one and the same undivided possession, while a 
 tenancy in common happens where there is a unity of possession 
 merely, but perhaps- an entire disunion of interest, of title and of 
 time. If there be two tenants in common of lands, one may hold 
 his part in fee-simple, the other in tail, or for life ; so that there is 
 no necessary unity of interest ; one may hold by descent, the 
 other by purchase ; one's estate may have been vested fifty years, 
 the other's but yesterday; so there is no unity of time. The 
 only unity there is in a tenancy in common is that of possession ; 
 and the reason given for this by Littleton is, that no man can 
 certainly tell which part is his own ; otherwise even this unity 
 would be destroyed. Upon principle, therefore, it is quite obvious 
 that the rules relating to tenancies in common and those relating 
 to joint-tenancies should be different. Between joint-tenants there 
 is a thorough union, and in many respects they are like copartners 
 in business, where the act of one, within the scope of the partner- 
 ship, binds them all, while tenants in common are entirely inde- 
 pendent of each other in everything that respects their estate, 
 except the simple fact of possession. Hence the^ule very properly 
 
232 LAW OF EJECT3IBNT AND ADVERSE ENJOYMENT. 
 
 is, that where two or more persons are interested as joint-tenauts, 
 and the notice to quit is given by an agent, the authority of one 
 of the joint-tenants to such agent will bind his companions and 
 make the notice valid against all ; while if the persons be interested 
 as parceners or tenants in common, the notice will be available 
 only for such portions of the land as the parties who have given 
 authority to the agent before he delivered the notice shall be 
 entitled to. In the case of a demise by two joint-tenants, the 
 hardship upon the tenant, if he were not entitled to treat a notice 
 from one as putting an end to the tenancy as to the whole, is 
 obvious ; for, however willing a man might be to be sole tenant to 
 an estate, it is not likely he should be willing to hold undivided 
 shares of it; and if upon such a notice the tenant is entitled to 
 treat it as putting an end to the tenancy as to the whole, the other 
 joint-tenants must have the same right. It cannot be optional on 
 one side only. {Doe v. Somerset, 1 Barn. & Adolph. E. 135, 137. 
 Doe V. Hughes, 7 Mees. & Welsh. E. 139.) 
 
 Judge Story, in his work on agency, lays it down that when an 
 act is beneficial to the principal, and does not create an immediate 
 right to have some other act or duty performed by a third person, 
 but amounts simply to the assertion of a right on the part of the 
 principal, then the general rule referring to the effect of ratifica- 
 tion seems generally applicable. But if the act done by such 
 third person would, if authorized, create a right to have some act 
 or duty performed by a third person, so as to subject him to dam- 
 ages or losses, or would defeat a right or an estate already vested 
 in the latter, then the subsequent ratification of the unauthorized 
 act by the principal will not give validity to it, so as to bind such 
 thii'd person to the consequences. (Story on Agency, §§ 245, 246.) 
 This doctrine was applied to notices to quit in the cases before 
 cited ; and it is held in a late case in the state of Maine, that a 
 subsequent ratification will not operate to prejudice intervening 
 rights, or to prejudice a person who has been guided by the trans- 
 action as it actually occurred. {Fish v. Holmes, 41 Maine E. 441.) 
 Upon the principle before stated, it has been recently held by the 
 supreme judicial court of Kew Hampshire, that a notice to quit 
 by two of three joint-lessors will not terminate the entire tenancy 
 so as to enable the three lessors to maintain summary proceedings 
 under the landlord and tenant act ; and when the party giving 
 the notice assumed to act for three lessors, but had, in fact, no 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 233 
 
 authority from one of them, it was decided that a subsequent 
 ratification, made after the time when the notice to quit was to 
 take effect, will not be equivalent to a prior authority. {Piclcard 
 V. Parley^ 45 K. H. E. 188. And vide Currier v. Perley, 24 ib. 
 227.) The reasoning in a case of summary proceedings applies 
 with equal force in the action of ejectment, and of course, there- 
 fore, the rule must be the same in both cases. The fact is, where 
 one of two or more tenants in common would terminate the 
 tenancy as well for his companions as for himself, he should be 
 clothed with authority to give the notice at the time the notice is 
 served, and a subsequent ratification of the act will not answer 
 the purpose. 
 
 A person, who is duly authorized to let premises and receive 
 rents, has been held to be authorized to determine a tenancy. 
 {Doe V. Mirsan, 2 Moody & Eobinson's E. 56.) So, also, the 
 steward of a corporation may give a notice to quit without a power 
 under the corporation even for so doing. {Roe v. Pierce, 2 Camp. 
 E. 96.) And a receiver appointed by the court of chancery, with 
 power to let the lands, has been decided to be an agent sufficiently 
 authorized to give a notice to quit ; for, if he have authority to let, 
 he must be taken to have a power of determining the letting, as 
 he must determine for how long he will let. ( Wilkinson v. Colley, 
 5 Burr. E. 2694. Doe v. Head, 12 East's E. 57,' 61.) The head 
 note of the case in East's reports is ; " It seems that a receiver 
 appointed by the court of chancery, with general authority to let 
 the lands to tenants from year to year, has also authority to deter- 
 mine such tenancy by a regular notice to quit." The principle 
 involved in this statement is important, and will apply to other 
 oiBcers and agents than receivers in chancery. 
 
 11. In cases of landlord and tenant, difficulties can seldom occur 
 as to the party upon whom the notice to quit should be served ; 
 and yet there are some points in regard to it which it will be con- 
 venient to note. 
 
 The service of the notice should invariably be upon the tenant 
 of the party giving the notice, notwithstanding a part, or even the 
 whole, of the premises may have been underlet by him. This is 
 the general rule ; and it has been held, that a notice given by the 
 lessor to his immediate lessee, who has continued to pay him his 
 annual rent, is sufficient, though another person is in possession 
 of the premises. (Jackson v. Baker, 10 Johns. E. 270.) 
 30 
 
234 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In a case where the service was upon a relative of the under- 
 tenant upon the premises, Lord Ellenborough, C. J., ruled the 
 service to be insufficient, although the notice was addressed to the 
 original tenant. {Doe v. Levi, referred to in Adams on Eject. 130, 
 note h.) 
 
 Where a tenant from year to year underlet part of the premises, 
 and then gave up to his landlord the part remaining in his own 
 possession, without either receiving a regular notice to quit the 
 whole, or giving notice to quit to his sub-lessee, or even surrender- 
 ing that part in the name of the whole ; it was held, that the 
 original landlord could not entitle himself to recover against the 
 sub-lessee upon serving on him a notice to quit in his own name, 
 for the reason that there was no privity of contract 'between the 
 parties, and, as to the part so underlet, the original tenancy still 
 continued undetermined. Le Blanc, J., said: "If the landlord 
 had given his original tenant notice to quit the whole, no doubt 
 that would have been sufficient ; or, if the original tenant had 
 given his landlord regular notice that he meant to quit the whole, 
 there might have been a question ; but here it seems that the 
 original tenant only gave his landlord possession of the part which 
 he actually held, without any notice to quit the whole." {Pleasant 
 V. Benson, 14 East's E. 234.) 
 
 The original lessee is liable to an ejectment, it seems, at the 
 expiration of the notice, for the lands in the possession of his 
 under-tenants, although he may, on his part, have given notice to 
 them, and delivered up such parts of the premises as were under 
 his own control. In other words, if, upon notice to quit given to 
 a tenant, he gives notice to his under-tenants at the same time, and, 
 upon the expiration of the notice, he quits so much as is occupied 
 by himself, but his under-tenants refuse to quit, an ejectment may 
 still be maintained against him for so much as his under-tenants 
 have not given up. {Roe v. Wiggs, 5 Bos. & Pull. E. [2 New 
 Eeports] 330.) 
 
 Where the premises are in the possession of two or more, as joint- 
 tenants, or tenants in common, a written notice to quit addressed 
 to all, and served upon one only, will be a good notice ; that is to 
 say, it lias been held, that notice to quit served on one of two ten- 
 ants on the premises, who held under a joint demise, is evidence 
 that the notice reached the other who lived elsewhere. {Doe v 
 Watkins, 7 East's E. 551.) And it has even been held that a 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 235 
 
 parol notice, given to one tenant only, will bind his fellow. {Doe 
 V. Crich, 5 Esp. K. 196.) This is undoubtedly correct as to many 
 matters relating to the premises held by two or more persons 
 under a joint demise ; but ordinarily it would be unsafe to rely 
 upon such a notice to quit, unless there is something in the lease 
 dispensing with a written notice. When a notice to quit is neces 
 sary, it is usually required to be in writing. 
 
 Where a corporation aggregate is the tenant, the notice must be. 
 addressed to the corporation, and served iipon its officers, and it 
 has been held, that a notice addressed to the officers will not be 
 sufficient. {Doe v. WoodmoM, 8 East's E. 228.) 
 
 Where a tenant from year to year died, and a notice to quit was 
 served upon the widow, who remained in possession, and no proof 
 was given that there was any personal representative of the testa- 
 tor, the notice was held sufficient. {Doe v. Perrott, 4 Carr. & Pa. 
 E. 230.) 
 
 Service of the notice to quit on the servant of the tenant, at 
 the dwelling-house of the tenant, is sufficient, and held so, even 
 though the tenant was not informed of the service of such notice 
 till within a half year of the expiration of such notice. {Doe v. 
 Dunlar, 1 Moore & Malkin's E. 10. Same Case, 22 Eng. 0. L. 
 E. 4:59.) And where the premises are held by two persons in 
 common, notice to quit served upon the wife of one of the tenants 
 on the premises held by him, is sufficient ; and if the premises are 
 held in severalty by the tenants, it will be sufficient to serve the 
 notice to quit upon the wife of the tenant on the premises held by 
 each respectively. {Blair v. Street, 2 Adolpli. & Ell. E. 329. 
 Same Case, 29 Eng. C. L. 163.) 
 
 If the tenant who held the premises from year to year, die in 
 possession, the notice to quit may be served on the administrator 
 who pays the rent. {Prior v. Langley, 10 Com. Bench E. 25. 
 Same Case, 61 Eng. C. L. E. 25.) 
 
 It is always preferable that the service of the notice to quit be 
 made upon the tenant personally, when it is practicable to make 
 personal service ; but it may be affirmed as a general rule that, 
 when personal service cannot be effected, the service will be suffi- 
 cient if the notice be left with the wife or servant of the tenant, 
 who is a person of discretion, at the usual place of residence of 
 the tenant, whether upon the demised premises or elsewhere, and 
 its nature and contents explained at the time of service. {Jones v. 
 
236 LAW OF EJECTMENT AND AB VERSE ENJOYMENT. 
 
 Marsh, 4 Term E. 464. Smith v. Clarke, 9 Dowl. P. C. 202. Doe v. 
 Dunbar, 1 Moore & Malk. K. 10.) And it seems to be a matter of 
 indifference as to the particular mode of service of the notice, pro- 
 vided the service is made in good faith, and it can be shown that 
 the notice came to the hands of the tenant before the time in which 
 the notice is required to be served, in order to give the tenant the 
 requisite period previous to the expiration of his year of holding. 
 y{Alford v. Vickery, 1 Car. & M. R 280.) But the mere leaving 
 the notice at the dwelling-house of the tenant, without proof that 
 it was delivered to some member of the tenant's household, is 
 held not to be a sufficient notice. {Doe v. Lucas, 5 Esp. E. 153.) 
 
 A regular service of the notice to quit may properly be inferred 
 from circumstances. For example, the tenant, in conversation 
 with the witness, spoke about a notice to quit, which he had 
 received, and engaged a valuer to value his rights as an outgoing 
 tenant. (Simpson v. Hall, 5 Manning & Granger's K. 795. Same 
 Case, 44 Eng. C. L. E. 414.) 
 
 III. The notice to quit is generally required to be in writing, 
 and when the landlord intends to enforce his' claim to double rent 
 if the tenant holds over, the rule is peremptory under the English 
 statute, requiring the notice to be in writing. (4 Geo. 2, chap. 28, 
 § 1.) But for the purposes of ejectment, the English authorities 
 hold, that a parol notice is sufficient, unless the notice is required 
 to be in writing, by express agreement of the parties. {Legg v. 
 Berrian, Willes' E. 43. Timmins v. Robinson, 1 "W". Black. E. 
 533. Doe v. Crick, 5 Esp. E. 196. Roe v. Pierce, 2 Camp. E. 96.) 
 But this is a inatter usually regulated by statute in the American 
 states, and the subject will be definitely examined in a subsequent 
 chapter. It may here be asserted, however, that the general 
 practice both in this country and in England, is to give written 
 notice ; and it is certainly a practice which ought always to be 
 observed when possible, in order to prevent mistakes, and render 
 the evidence certain and correct. 
 
 It is customary to address the notice to quit to the tenant in 
 possession ; and it is thought to be most prudent to do so, although 
 it is held not to be important if proof can be given that the 
 notice was served personally upon the tenant. In that case it 
 would doubtless be sufficient if the notice was not addressed at all, 
 provided it was full and accurate in other particulars, and properly 
 signed by the landlord. But unless the notice is served upon the 
 
EJECTMENT AS BETWEEN LANBLOBD AND TENANT. 237 
 
 tenant personally, it should be properly addressed to the tenant 
 whose term it is sought to put an end to. (JDoe v. Wrightman, 
 4 Esp. E. 5.) Where a notice was addressed to the tenant by a 
 wrong Christian name, and the tenant did not return the notice or 
 object to it, and there was no tenant of the name mentioned in 
 the notice, it was ruled at Nisi Prius, to be sufficient. {Doe v. 
 Spiller, 6 Esp. E. 70.) 
 
 It is always sufficient if the tenant can understand the notice 
 without danger of being misled, although the notice may not be 
 accurately worded. ( Williams v. Smith, 5 Adolph. & Ell. E. 350. 
 Samte Case, 31 Eng. C. L. E. 643.) And where the premises were 
 described in the notice in a wrong parish, the notice was held 
 sufficient if the tenant could not have been misled. {Armstrong 
 V. Wilkinson, 12 Adolph. & Ell. E. 743. Same Case, 40 Eng. G. 
 L. E. 368.) But where a proviso in a lease requires a notice of a 
 certain kind, it must be strictly complied with. {Cadley v. 
 Martinez, 11 Adolph.& Ell. E. 720. Same Case, 39 Eng. C. L. E. 
 384.) And notwithstanding the liberality with which the courts 
 regard these notices to quit, and the disposition to overlook merely 
 technical and informal errors in their form, care should be taken 
 that the words of the notice are clear and free from ambiguity 
 and give no alternative to the tenant ; for if the notice be really 
 ambiguous, or undecided or optional, however reluctant the court 
 may be to listen to objections of this nature, such notice will be 
 held ineifectual, as far at least as the action of ejectment is con- 
 cerned. {Roberts v. Hayward, 3 Carr. & Pa. E. 432.) But the 
 notice will not be declared invalid because it is optional, unless it 
 contain a real and iona fide option, and not merely an apparent 
 one ; for if it appear clearly from the words of the notice, that 
 the landlord had no other end in view than that of turning out 
 the tenant, it will be deemed a notice sufficient to found an eject- 
 ment upon, notwithstanding an apparent alternative. For example, 
 the words of the notice : " I desire you to quit the possession at 
 Ladyday next, of the premises in your possession, or 1 shall insist 
 upon double rent," have been held to contain no alternative ; because 
 the landlord did not thereby mean to oifer a new bargain, but only 
 added the latter words as an emphatical way of enforcing the 
 notice, and showing the tenant the legal consequences of his hold- 
 ing over, inasmuch as the statute gives double the value on hold- 
 ing over. It seems, however, that if the words had been "or else 
 
238 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 that you agree to pay double rent," the notice would liave been 
 an alternative one, and defective. {Doe v. Jackson, Douglas' 
 E. 175.) 
 
 A notice to quit at the end of the current year, " on failure 
 whereof I shall require you to pay me double former rent or 
 value, for so long as you do detain possession," is held to be an 
 unqualified notice, and does not give the tenant an option. {Doe 
 V. GoLdwin, 2 Queen's Bench E. 142. &me Case, 42 Eng. C. L. 
 E. 610.) It should be stated that in all eases, the words, " the 
 current year," refer to the time of entry, unless the parties stipu- 
 late to the contrary. {Doe v. Dolell, 1 Queen's Bench E. 806. 
 Same Case, 41 Eng. C. L. E. 786.) Where the notice was to quit 
 " on the 25th day of March, or the 6th day of April next ensuing," 
 and was delivered before new Michaelmas day, it was held to be 
 a good notice ; as being intended to meet a holding commencing 
 either at new or old Ladyday, and not to give an alternative. 
 {Doe V. Wrightman, 4 Esp. E. 5.) Upon the same principle, the 
 court will not invalidate a notice on account of an ambiguity in 
 the wording of it, provided the intention of the notice be suffi- 
 ciently certain. {Doe v. Knightly, 7 Term E. 63. Doe v. , 
 
 4 Esp. E. 185.) 
 
 A notice to quit part only of the premises leased together, is 
 bad ; but where a farm was leased for twenty-one years, at a rent 
 of £180 per annum, consisting, as described in the lease, of the 
 town harton and its several parcels described by name, at the rent 
 of £83, other closes named at other rents of £5, £5 and £1, the 
 shippen harton and its several parcels described by name, at £86 ; 
 with a power reserved to either party to determine the lease at the 
 end of fourteen years, on giving two years' previous notice ; the 
 court of king's bench held, that a notice by the landlord to his 
 tenant, to quit " town harton, etc., agreeably to the terms of the 
 covenant between us, on the expiration of the fourteenth year of 
 your term," given in due time, was sufficient. Lord Ellenborough, 
 C. J., said : " The landlord must have intended to give such notice 
 to quit as the lease reserved to him the liberty of giving, and not 
 a void notice to quit a part only ; and so the notice in question 
 must have been understood by the tenant. The notice to quit the 
 town 5arto«, where the mansion was, meant the toion harton, cum 
 sociis j especially with reference to the lease, which only gave 
 him power to determine the tenancy as to the whole of what was 
 
.■EJECTMENT AS BETWEEN LANDLORD AND TENANT. 239 
 
 let together." Le Blanc, J., said : " There being no power 
 under the lease to determine the tenancy as to part only, the notice 
 to quit could have no operation at all, unless taken, as it must 
 have been intended, to apply to the whole." {Doe v. Archer, 14 
 East's E. 245.) 
 
 So, also, notice to a yearly tenant to quit the farm, etc., " situate 
 at D. in the county of York, which you now hold under me," the 
 premises not being situated at D. but at H., an adjoining parish, 
 was held not to be a material variance, the tenant not having 
 shown that he held more than one farm, or that he was misled by 
 the notice. {Doe v. Wilkinson, 12 Adolph. & Ell. E. 743.) A 
 lease of lands by deed, since the new style to hold from the feast 
 of St. Michael, is held to mean from new Michaelmas, and cannot 
 be shown by extrnsic evidence to refer to a holding from old 
 Michaelmas ; and, therefore, it was decided that a notice to quit 
 at old Michaelmas, though given half a year before ')iew Michael- 
 mas, was bad. {Doe v Lea, 11 East's E. 312.) It has been held, 
 however, that where a notice is given to quit at Michaelmas or 
 Ladyday generally, it will not be deemed an ambiguous notice, 
 but considered prima facie, as expiring at new Michaelmas, or 
 new Ladyday ; open, however, to explanation, that old Michaelmas 
 or old Ladyday, was intended. And it was further decided, that 
 if it appear that the customary holidays, where the lands lie, are 
 from old Michaelmas or Ladyday, or even that in point of fact 
 the tenant entered at old Michaelmas or Ladyday, although no 
 such custom exist, such notice will be binding upon him. {Furley 
 V. Wood, 1 Esp. E. 197. Doe v. Vivar, 2 Camp. E. 256. Doe v. 
 Benson, 4 Barn. & Aid. E. 588. Doe v. Perrin, 9 Car. & Pa. 
 E. 467.) 
 
 In the state of Delaware, where the demise of the premises is 
 for a year, or a less time, or at will, the tenancy cannot be deter- 
 mined without the service of a three months' notice in writing 
 upon the tenant from the landlord, requiring him to leave and 
 deliver up the possession of the premises at the expiration of the 
 notice. {Bensall v. McKay, 1 Houston's E. 520.) And, in the 
 state of Illinois, it has recently been held, that where an entry is 
 made into lands with the assent of the owner, and possession has 
 been long continued, that it is not wrongful until after demand of 
 possession is made, and that the occupant is entitled to notice to 
 quit ; and it was said, that, where the purpose of the occupancy is 
 
240 LAW OF JSJECTMENT AND ADVERSE ENJOYMENT. 
 
 not agricultural, a shorter notice will suffice than where a question 
 of emblements is involved. Still, it would have to be reasonable, 
 so as to afford the occupant reasonable time within which to sur- 
 render possession ; though it was not decided what would be a 
 reasonable notice in a given case. {The GUcago, Burlington and 
 Quincy Railroad Company v. The President and Trustees of 
 Knox College, 34 111. R. 195.) 
 
 A notice to the effect that the tenant is required to qnit and 
 deliver up to the landlord the possession of the premises he 
 holds under said landlord, briefly describing the premises, at the 
 end and expiration of the current year of his tenancy thereof, 
 which shall expire next after the end of one-half year from the 
 date of said notice ; has been adjudged to be good. (JDoe v. But- 
 ler, 2 Esp. R. 589.) 
 
 As has been intimated, the notice must include all the premises 
 under the same demise ; but where the demise was of land and 
 tithes, and the notice was to quit possession of " all messuage, 
 tenement or dwelling-house, farm-lands, and premises, with the 
 appurtenances, which you rent of me," it was ruled at nisi prius, 
 that this notice was sufficient to include the tithes ; for, the tithes 
 being held along with the farm, the notice must have been under- 
 stood by both parties to apply to both. (Doe v. Church, 3 Camp. 
 R. 71.) This is in accordance with the principles of several 
 authorities hereinbefore referred to. Undoubtedly, when the 
 nnderstanding of both parties is apparent from the circumstances 
 of the case, that will govern in respect to the construction to be 
 given to the notice to quit. 
 
 IV. The question, as to when the notice to quit should expire, 
 is not alwaj'S free from difficulty or doubt. At common law, the 
 notice necessary to be given to a tenant is a notice for halfayear, 
 expiring at the end of the current year of his tenancy, and a notice 
 expiring at any other period will not be sufficient. This notice is 
 frequently referred to as a notice of six months, and in this country 
 there is no difference between six months and half a year. But 
 in England there seems to be this distinction, that when the ten- 
 ancy expires, at any of the usual feasts, as Michaelmas, Christmas, 
 Ladyday, or Midsummer, the notice must be given prior to the 
 corresponding feast happening in the middle of the year of the 
 tenancy ; whilst, if it expire at any other period of the year, 
 the notice must be given six calendar months previous to such 
 
MJECTMENT AS BETWEEN LANDLORD AND TENANT. 241 
 
 expiration. ( Vide yRight v. Darby, 1 Term K. 159. Adams on 
 Eject. 138, 139.) 
 
 In a recent case in England, where A held premises of B, as 
 tenant for a year, and so on from year to year, so long as C should 
 live, the tenancy commencing at Christmas ; and, after the death 
 of A (C being also dead), A's widow, by an agreement with the 
 landlord, continued to occupy the premises at the same rent, noth- 
 ing being said about the commenoement of her tenancy ; the court 
 held, that there was evidence enough to warrant the jury in assum- 
 ing that the widow's tenancy was a mere continuation of the 
 original tenancy of A, and therefore properly determined by a 
 notice to expire at Christmas. {Runvphreys v. Franks, 9 J. Scott's 
 E. 323.) 
 
 When a tenancy commences at any of the usual feasts, the 
 notice may be given to quit at the end of half a year, of six 
 months from the date of the corresponding feast in the middle of 
 the year, without stating the day when the tenant is to quit, 
 although the intermediate term be not exactly half a year or six 
 months, from feast to feast, being the usual half-yearly computa- 
 tion. And, in a case where the notice was to quit " on or about 
 the expiration of six calendar months from the 29th of September" 
 (the tenancy commencing March 25), the court ruled the word 
 calendar to be surplusage, and held the notice good. -. {Howard v. 
 Wemsley, 6 Esp. E. 53.) The tenant of a house, taken by the 
 year, is entitled to the same privileges, with respect to the notice 
 to quit, as the occupier of land. {Right v. Darby, 1 Term E. 159.) 
 But the rule, or usages, with respect to notices to quit, do not 
 extend to cases of lodgings ; and it is decided, that, when lodgings 
 are taken for a certain period, the tenancy terminates at the expira 
 tioii of that period, without notice to quit, or notice on either side ; 
 and that a new contract, for a similar period, is implied by law, 
 whenever the tenant continues in possession, and enters upon a 
 fresh term, as, for a week, if taken by the week, a month, if taken 
 by the month, and the like. In a leading case, in England, Mr. 
 Baron Parke laid down the rule thus ; " I am not aware that it 
 has ever been decided, that, in the case of an ordinary monthly or 
 weekly tenancy, a month or a week's notice to quit must be given. 
 The cases cited are not authorities in support of the proposition. 
 A tenant who enters upon a fresh week may be bound to continue 
 until the expiration of that week, or to pay the week's rent, but 
 31 
 
242 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 this is a very different thing from giving a week's notice to qrat. 
 The proposition contended for is this, that, if a tenant commences 
 a new week, without giving notice, he is to be considered as con- 
 tracting to held, not only for that week, but also for the following 
 week. I am of the opinion, in the absence of any evidence to 
 prove usage to that effect, that, in point of law, a week's notice to 
 quit is not implied as part of the contract in the case of an ordin- 
 ary weekly taking." The learned baron also laid down the rule, 
 in the same case, that a weekly tenancy terminates on the day of 
 the week corresponding with the day of its commencement, that is 
 to say, that a party entering on a Monday may quit on a Monday, 
 observing : " I cannot say a week has been exceeded by holding 
 for six days and t\^o fractions of a day." {HuUell v. Armstrong, 
 7 Carr & Pa. E. 56. Vide also Wilson, v. Abbott, 5 Barn. & Ores. 
 E. 89.) 
 
 It may be remarked that estates for years embrace such as are 
 for a single year, or for a period still less, if definite and ascer- 
 tained, as a term for a fixed number of weeks or months, as well 
 as for a definite number of years ; and the duration of the notice 
 to quit, will generally be governed somewhat by the period during 
 which the tenancy is first limited. But the parties may, by 
 special agreement, vary the time of the duration of the notice, 
 though the time fixed may be different from that allowed by law. 
 And yet, where the letting is from year to year, the notice must 
 expire with the year of the tenancy, unless the agreement also 
 expressly provides some other period for its expiration. {Doe v. 
 Donovan, 1 Taunt. E. 155.) 
 
 A demise for one year only, and then the tenancy to continue 
 afterward, with the express understanding that the tenant shall quit 
 at a quarter's notice ; and a demise wherein it was agreed " that the 
 tenant was always to be subject to quit at three month's notice," 
 have been held to be demises determinable at the end, although not 
 in the middle of any quarter. {Kemp v. Derrett, 3 Camp. E. 
 611. Shirley v. Newman, 1 Esp. E. 266. Doe v. Porter, 3 Term 
 E. 13.) But it has been held that a quarterly reservation of rent 
 is not a circumstance from which an agreement to dispense with a 
 half-yearly notice is to be inferred ; and yet when the landlord 
 accepted in such case, a three months' notice from his tenant, 
 without expressing either his assent to or dissent from such notice, 
 it was held at nisi prjus to be presumptive evidence of an agree- 
 
JBJECTMENT AS BETWEEN LANDLORD AND TENANT. 243 
 
 ment that three months' notice should be sufficient. (Adams on 
 Eject. 141.) 
 
 It is well settled that where there is a tenancy from year to 
 year a notice to quit at the expiration of six months is not suffi- 
 cient unless that time corresponds with the commencement of the 
 tenancy, so as to terminate a yearly holding. "When the tenancy 
 is from week to week, or from month to month, a week's or 
 a month's notice to quit must be given. And in analogy to the 
 notice in the case of a yearly holding, it must be given in refer- 
 ence to the commencement of the tenancy. {Doe v. Hazele, 1 Esp. 
 E. 94.) 
 
 The notice may be given to quit upon a particular day, or in 
 general terms at the end and expiration of the current year or 
 period of the tenancy, wliich shall expire next after the end of one- 
 half year, or other period as the case may be, from the service of 
 the notice. (Z>oe v. jSwiZe?", 2 Esp. E. 589.) If a particular day be 
 mentioned in the notice it inust be the daj' of the commencement 
 and not of the conclusion of the tenancy ; for the tenant cannot 
 be compelled to quit while his right of possession continues, and 
 this right is not to be determined until the year is fully completed. 
 It must also be the exact day of such commencement; the next or 
 any subsequent day will not be sufficient. {Doe v. Lea, 11 East's 
 R. 312.) In the case of a weekly tenant, a notice to quit at .the 
 end of the tenancy next after one week from the time of the 
 notice, is good. {Doe v. Scott, 6 Bing. E. 169.) It was even held 
 in one case in the English common pleas that in case of a quarterly 
 tenancy a notice is required to terminate it, but otherwise in the 
 case of a tenancy by the week. {Towns v. Canvpbell, 3 Com. B. E. 
 921.) And in still another case the English courts held that in 
 case of an ordinary weekly tenancy a week's notice to quit is not 
 implied as a part of the contract unless there be a usage to that 
 effect. {Hvffell v. Armstead, 1 Clark & Fin. E. 56. Same Case, 
 32 Eng. C. L. E. 497.) But the rale undoubtedly is that where the 
 tenancy is from week to week there must be a notice to quit, and 
 the time of such notice must be regulated accordingly. {Doe v. 
 Baffan, 6 Esp. E. 4.) And if the tenancy is to run from month 
 to month, the notice to quit must be a notibe of one month ; and 
 when in such case a landlord gave a notice to quit, which expired 
 on the fourth day of May, and subsequently received rent up to 
 the first day of June following, without saving o? reserYing his 
 
244 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 rights under his notice to quit, it was held that the acceptance of 
 the rent was a waiver of the notice, and that no action could be 
 sustained until the service of a new notice. {Frindle v. Anderson, 
 19 Wend. E. 391.) Where the tenancy from month to month com- 
 menced on the first day of September, the court decided that the 
 notice to quit, if intended for the first of May following, should 
 have been served on or before the first day of April previous ; and 
 if intended for the first day of June'it should have required the 
 tenant to quit at that time ; and that in such case a notice served 
 on the fourth day of April, requiring the tenant to quit at the 
 expiration of thirty days, or within thirty days, was insufficient. 
 {Anderson v. Prindle, 23 Wend. 616.) 
 
 In the state of Yermont, the supreme court held, that a tenant 
 from year to year is entitled to six calendar months' notice to quit ; 
 and that the notice must specify the time of quitting, viz., the 
 expiration of the year. {Hunchet v. Whitney, 1 Vt. R. 315.) And 
 in Pennsylvania it was held, that where a lease is made for a year, 
 and the tenant is allowed to hold from year to year, a notice to 
 the tenant, at the beginning of the year, to quit in three months, 
 is not sufficient ; that a year's notice should be given, or instanter 
 notice. (Fahnestodk v. Fahnestock, 5 Serg. & Kawle's R. 174. 
 Yide Logan v. Herron, 8 ib. 459.) 
 
 A tenancy from year to year, from month to month, or from 
 week to week, may be determined by either landlord or tenant, by 
 giving the regular notice to quit ; and whether it is sought to 
 terminate the tenancy by the landlord or the tenant, the notice in 
 either case is the same. {Doe v. Browne, 8 East's R. 165.) 
 
 The time when a tenancy from year to year commences and 
 expires, takes its date, in the absence of all other circumstances, from 
 the time when the tenant actually enters upon the demised prem- 
 ises ; but, of course, this general rule may be varied, both as to 
 the commencement and expiration of the tenancy, either by express 
 agreement or legal evidence. {Knox y. Derritt, 3 Camp. R. 511.) 
 
 Where a person is let into possession as a yearly tenant, and 
 afterward, takes a lease of the premises, and continues to hold the 
 land after the lease has expired, the time of the expiration of the 
 tenancy, created by holding over, will be regulated by the terms 
 of the lease, and not by the time of the original entry. {Doe v. 
 JJuce, 11 East's R. 312.) And this rule extends to the assignees 
 of the original lessor, and their assigns. Whatever may be the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 245 
 
 period of the year when they enter upon the demised premises, 
 the time of the expiration of their tenancies will be the same as 
 if the original lessor had continued in possession ; and it seems to 
 be immaterial whether they come into possession before or after 
 the expiration of the original lease. {Doe v. Samuel, 5 Esp. R. 
 173.) So, where a remainderman receives rent from a person in 
 possession under a lease, granted by the tenant for life, but void 
 against the remainderman, and thereby creates a tenancy from 
 year to year, the time at which a notice to quit, given by such 
 remainderman, must expire, will be regulated by the terms of the 
 lease, and not by the time of the death of the tenant for life, 
 {Doe V. Wilbur, 7 Term E. 478. ' Bight v. Darby, 1 ib. 159.) To 
 illustrate ; tenant for life makes a lease for years, to commence on 
 a certain day, and dies before the expiration of the lease, in the 
 middle of a year. The remainderman receives rent from the lessee, 
 who continues in possession, without any fresh lease, for two years 
 together, on the days of payment mentioned in the lease. The 
 court of common pleas of England hold this to be evidence, from 
 which an agreement should be presumed between the remainder- 
 man and the lessee, that the lessee should continue to hold from 
 the day, and according to the terms of the original demise, and, 
 accordingly, that notice to quit ending on that day was proper. 
 {Roe V. Ward, 1 PI. Black. E. 97.) 
 
 It is held, that no new tenancy is created by a mere agreement 
 between landlord and tenant for an increase of rent in the middle 
 of the year of a tenancy ; and that a notice to quit given after the 
 receipt of the increased rent must expire at the time when the 
 tenant originally entered. {Doe v. Keridrick, referred to in Adams 
 on Eject. 144.) 
 
 It sometimes happens, that a tenant enters upon different parts 
 of the land demised, at different periods of the year, although all 
 are contained in the same lease. In such a case, the notice to quit 
 must be given with reference to the substantial time of entry ; that 
 is to say, with reference to the time of entry on the substantial 
 part of the premises demised. For instance, under an agreement 
 by a tenant of a farm "to enter on the tillage land at Candlemas, 
 and on the house and all other the premises at Lady-day following, 
 and that, when he left the farm, he should quit the same according 
 to the times of entry as aforesaid;" and the rent was reserved 
 half-yearly at Michaelmas and Lady day ; it was decided, that a 
 
246 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 notice to quit delivered half a year before Lady-day, but less than 
 half a year before Candlemas, was good ; the court holding, that 
 the substantial time of entry by the tenant on the farm was at 
 Lady-day, from whence the rent was made payable ; with a privi- 
 lege to the tenant, on the one hand, to enter on the arable land 
 before that period, for the purpose of preparing it, and, on the 
 other hand, a stipulation by him, when he quits the farm, to allow 
 the same privilege to the incoming tenant. Lord EUenborongh, 
 C. J., remarks : " Such appears to have been the general rule of 
 construction laid down with respect to takings of this sort ; and, 
 being convenient in itself, it is better to abide by it." {J)oe v. 
 Spencer, 6 East's E. 120.) 
 
 The substantial time of entry referred to in the case in East, is 
 to be determined either by the general customs of the country 
 where the land lies, or upon the relative value and importance of 
 the diiferent parts of the demised premises ; and of those facts it 
 is the province of the jury to decide. ( Vide Doe v. Snowden, 2 "W. 
 Black. R. 1224. Doe v. Spencer, supra. Doe v. Watlcins, 7 East's 
 E. 551. Doe v. Harwood, 11 ib. 498.) 
 
 Where the tenant entered upon the land on the second day of 
 February, and the house and out-buildings on the second of May, 
 a notice to quit on the sixteenth of February, requiring the tenant 
 to quit the farm at the end of his present year's holding, was held 
 a sufficient notice to determine the tenancy in the ensuing spring, 
 it not being shown by the tenant that the land was the principal 
 subject of the holding. {Doe v. Bxighes, 7 Mees & "Welsh. E. 139.) 
 If a notice to quit be given by the tenant in writing and signed 
 by him, but not expiring with the year of his tenancy, his land- 
 lord may treat such irregular notice as a surrender of the tenancy ; 
 and of course a similar rule would apply in ease of an irregular 
 notice given by the landlord, so that in such case the tenant 
 would be authorized to give up the farm. {Aldenhurgh v. Peafer, 
 6 Carr. & Pa. E. 242.) 
 
 V. The rule of law which requires that tenancies from year to 
 year, from month to month, and the like, shall be terminated by 
 a regular notice to quit, is most equitable and convenient, and yet 
 such notice may be waived by the parties. So also a regular notice 
 to quit, properly served, may be waived by the acts of the parties 
 after the service of the notice. The most usual means by which 
 a waiver of a regular notice to quit is occasioned is the acceptance 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 247 
 
 of rent accruing subsequently to tlie expiration of the notice. It 
 has been held, however, in respect to this, that the acceptance of 
 rent accruing as aforesaid, is not of itself a waiver of the notice, 
 but only matter of evidence to be left to the jury to determine 
 with what views and under what circumstances the rent is paid 
 and received. The rent must be paid and received as rent j that 
 is to say it must be paid and received in such a way and under 
 such circumstances as to satisfy the jury of an intention to con- 
 tinue the tenancy, or the notice will remain in force. {Doe v. 
 Bather, 1 Cowp. E. 243. Doe v. Colvert, 2 Campb. R. 387. Good- 
 right V. Cordioent, 6 Term E. 219.) Where one having an estate 
 in remainder after the expiration of an estate for life, gave notice 
 to the tenant to quit on a certain day, and afterward accepted 
 half a year's rent accrued due before the expiration of the notice 
 to quit ; the court held such acceptance to be only evidence of a 
 holding from year to year, which was rebutted by the previous 
 notice to quit ; and therefore the notice remained good. {SyTces v. 
 
 , 1 Term E. 161, cited by Gibbs, counsel.) Demand of rent 
 
 accruing subsequently to the expiration of the notice is not neces- 
 sarily a waiver of the notice. The circumstances must be such 
 as to prove the intention of the parties to continue the tenancy 
 or sufficient to constitute a new contract. /The payment and 
 receipt of rent ; or a distress for such rent by the landlord, and 
 acquiesced in by the tenant, would doubtless be sufficient to 
 establish a waiver of the notice. {Bl/yth v. Dennet, 13 Com. B. 
 E. 178. Same Case, 76 Eng. C. L. E. 178.) But it has been held 
 that after verdict in ejectment for not quitting pursuant to regular 
 notice, a distress by the landlord for the rent due after verdict, 
 does not waive the notice to quit. {Doe v. Da/rby, 8 Taunt. 
 E. 538. Same Case, 4 Eng. C. L. E. 266. Holmes v. Davies, 3 
 Moo. E. 581. Same Case, 4 Eng. C. L. E. 553.) In respect to 
 the payment and receipt of rent as a waiver of the notice, 
 the supreme judicial court of Massachusetts held unqualifiedly 
 that " the acceptance of rent as rent, for a time subsequent to the 
 expiration of the notice, is an admission of the continuance of the 
 tenancy, and a waiver of the notice." {Collins v. Conty, 6 Cush. 
 E. 415.) And the supreme court of New York held also that 
 " the unqualified acceptance of rent after the expiration of the 
 notice to quit, is a waiver of the notice ; " but further decided that 
 ■where there are circumstances creating a doubt as to the quo 
 
24:8 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 anvmo it is received, or as to the lyona fides of the tenants, the 
 question should be submitted to the jury ; and it was intimated 
 that though it is not the absolute duty of a judge to leave the 
 question to a jury where there are no qualifying circumstances, 
 yet that it would not be amiss to do so. {Prindle v. Anderson, 
 19 Wend E. 391.) 
 
 The doctrine is very old that the mere reception of rent accrued 
 before the time for the termination of the tenancy, is not a waiver 
 o^ the notice, or a renewal of the lease ; for the lessor has the right 
 to that absolutely, whether the tenancy is terminated or not 
 (Coke Litt. 211, I ; Jackson v. Sheldon, 5 Cow. E. 456. Jackson 
 V. Allan, 2 ib. 230. Hunter v. Osterhoudt, 11 Barb. E. 33.) And 
 perhaps the mere reception of a sum of money by a lessor, to which 
 he is entitled, whether the tenancy exists or not, may of itself 
 have no tendency to prove his assent to its continuance ; the act 
 would seem equally consistent with the existence or termination 
 of the tenancy. ( Vide Gurrin v. Boston & Maine Railroad, 34 
 S". H. E. 506 ; N'orris v. Merrill, 43 ib. 213.) The cases simply 
 show that the payment of rent after the expiration of a notice to 
 quit, is evidence of the intention of both parties that a tenancy 
 should be taken as subsisting. But the payment and acceptance 
 of rent accruing after the expiration of the notice to quit 
 undoubtedly amounts to a waiver of a notice, though a demand 
 of such rent does not necessarily operate as a waiver ; and 
 it seems to be a question for the jury, and not for the court, 
 whether under the circumstances of the case, the notice has been 
 waived. ( Vide Blyth v. Dennett, 16 Eng. L. & Eq. E. 429. Same 
 Case, 13 Com. Bench E. 178.) 
 
 In the case cited from Cowper, Lord Mansfield expresses an 
 opinion generally, that the intent of the parties is to go to the 
 jury ; but he afterward assumes that a proper case must be made 
 out for them ; and speaking of the landlord, he says : " This cir- 
 cumstance (the payment of rent), it is insisted, is in fact a declara- 
 tion on his (the landlord's) part, that he departs from the notice 
 he had given, and is an acknowledgment that he still considers 
 the defendant as his tenant. But let us suppose that the landlord 
 had accepted this rent under terms, or made an express declara- 
 tion that he did not mean to waive the notice, and that notwith- 
 standing his acceptance or receipt of the rent, he should still insist 
 upon the possession ; or suppose any fraud or contrivance on the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 249 
 
 part of the tenant in paying it, clearly, under sucli circumstances, 
 the plaintiff ought not to be barred of his right to recover ; but all 
 these facts ought to be left to the consideration of the jury." 
 {Doe y. Balton, 1 Cowp. E. 243.) But the notice to quit may be 
 waived by other acts of the landlord, than the receiving of rent. 
 In all these cases, however, the facts are all open to explanation, 
 and the particular act will, or will not be a waiver of the notice, 
 according to the circumstances which attend it. For example, a 
 distress taken for rent accrued after the expiration of a notice to 
 quit, is held to be a waiver of the notice. Lord Loborough, 0. J., 
 said there could be no question of intention left to the jury, as the 
 taking a distress was an act not to be qualified, and an express 
 confirmation of the tenancy, and Gould, J., said : " In the mere 
 acceptance of rent, the quo animo is to be left to the jury agreeably 
 to Lord Mansfield's doctrine in the case in Cowper. But I agree 
 with my lord chief justice, that the distress was in this case an 
 act not to be qualified, and amounted to a confirmation of the 
 tenancy." Wilson, J., expressed the same opinion. {Zouch v. Wil- 
 Unggale, 1 H. Black. E. 311, 312.) It has been before stated that 
 after verdict against a tenant for not quitting pursuant to notice, 
 a subsequent distress by the landlord, for rent due after verdict, 
 does not waive the notice to quit ; and the case is quite pertinent 
 under this head. {Doe v. Darby, 8 Term R. 538.) A similar 
 doctrine was recognized by the supreme court of IS'orth Carolina, 
 in a case where an action of ejectment was brought against the 
 tenant by the lessor, after the expiration of the notice to quit, and 
 pending the action the defendant gave up the possession, then the 
 lessor sued the tenant and recovered against him for the use and 
 occupation of the premises during the time he held over after the 
 expiration of the notice to quit. The court held that this was no 
 waiver of the notice. {Stedman v. Mclntyre, 5 Iredell's E. 571.) 
 In a case in the king's bench of England, where a landlord gave 
 a notice to quit different parts of a farm at different times, which 
 the tenant neglected to do in part, in consequence of which the 
 landlord commenced an ejectment; and before the last period 
 mentioned in the notice had expired, the landlord, fearing that the 
 witness by whom he was to prove the notice, would die, gave 
 another notice to quit at the respective times in the following year, 
 but continued to proceed with his ejectment ; the court held that 
 the second notice was no waiver of the first. {Doe v. Hwnphreys, 
 32 
 
250 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 2 East's E. 237.) And where a second notice was given " to quit 
 the premises which you held under me, your term therein having 
 long since expired," the court considered the paper as a mere de- 
 mand of possession, and not a recognition of a subsisting tenancy. 
 {Doe V. Inglis, 3 Taunt. R. 54.) 
 
 But , in the court of king's bench, in ejectment against a lessee 
 of tithes for holding over, after the expiration of a notice to quit, 
 it was held that some evidence must be given to show that such 
 lessee did not mean to quit the possession ; as by his declaration 
 to that eifect, or even his silence when questioned about it; or by 
 showing that the defendant, who claimed by assignment from the 
 original lessee, had entered into the rule to defend as landlord ; and 
 it was decided that a second notice to the defendant to quit at 
 Michaelmas, 1811, was a waiver as to him of a former notice given 
 to the original lessee, from whom he claimed by assignment, to 
 quit at Michaelmas, 1810. The counsel for the landlord, in the 
 course of his argument, laid down the rule that the giving a person 
 a notice to quit does not operate to create a tenancy in him ; when 
 Lord Ellenborough, 0. J., replied : " It does not necessarily do so, 
 but it is generally considered as an acknowledgment of a subsisting 
 tenancy; and if a party obey the notice, how can he be deemed a 
 trespasser, on account of a prior notice to another person, l^othing 
 appears to show that the defendant had knowledge of any notice to 
 quit other than the one served upon him ;" and Bailey, J., observed 
 that the second notice gave the defendant to understand that if he 
 quit at Michaelmas, 1811, he would not be considered as a tres- 
 passer. {Doe V. Palmer, 16 East's E. 58.) 
 
 Mr. Adams remarks that it may be collected from this case in 
 East, that if a tenant, having underlet the premises, receive from 
 his landlord a notice to quit, and the landlord afterward give to 
 the under-tenant a notice to quit expiring at a subsequent period, 
 he is precluded from recovering in an ejectment against such under- 
 tenant, upon a demise anterior to the time of the expiration of 
 the notice so given by him to the under-tenant. And if, after the 
 expiration of a regular notice, the landlord should give to the 
 same tenant a second regular notice, in the usual form, to quit at 
 the termination of the next, or any subsequent year of the tenancy, 
 without referring therein to any claim for double value, and with- 
 out having taken any steps in the intermediate time to enforce the 
 first notice, it may be doubted whether such second notice will not 
 
EJECTMENT AS BETWEEN LANBLORB AND TENANT. 251 
 
 also amount to a waiver of the first." (Adams on Eject. 152, 153 ; 
 and vide Doe v. Miller, 2 Carr. & Pa. E. 348.) In another case 
 decided in the court of king's bench, where a landlord of prem- 
 ises about to sell them gave his tenant notice to quit on the 11th 
 of October, 1806, but promised him not to turn him out unless the 
 premises were sold ; and not being sold till February, 1807, the 
 tenant refused on demand to deliver up possession, and an eject- 
 ment was brought against him to recover possession, — the court 
 held that the promise of the landlord, which was performed, was 
 no waiver of the notice, nor operated as a license to be on the 
 premises otherwise than subject to the landlord's right of acting 
 on such notice if necessary ; and that therefore, the tenant, not 
 having delivered up possession on demand after a sale, was a tres- 
 passer from the expiration of the notice to quit. Lord Ellen- 
 borough, Oh. J., said in respect to the sale: "I cannot construe 
 the language of this correspondence on the part of the landlord, 
 as constituting a new tenancy between him and. the defendant 
 after the time of the notice to quit, or as a waiver of that notice ; 
 nor was it a license for the purpose now insisted upon. The land- 
 lord was willing indeed to let the defendant remain on the prem- 
 ises till a sale, and he was anxious at the same time to retain, and 
 did reserve to himself, all his rights under the notice to quit with 
 which he was armed in order to enforce obedience to that notice if 
 it should be necessary. * * * Here the landlord has kept his 
 promise, and did not turn out the tenant before he had sold the 
 premises ; but the tenant has broken his engagement by not deliv- 
 ering up the possession after the sale, and now ungratefully holds 
 out against his landlord. It was for the tenant to choose whether 
 he would continue to hold on and to pxpend his money and labor 
 on the premises under such an insecure sort of agreement, but 
 having chosen to run the risk, he must take the consequences." 
 Grose, Le Blanc and Bayley, JJ., severally expressed their 
 views in respect to the case, and concurred in the main with the 
 view taken by the lord chief justice. {Whitraen v. Symonds, 10 
 East's E. 13.) When a regular notice to quit had been given, ter- 
 minating at Michaelmas, 1835, and previous to August, 1835, the 
 landlord agreed to permit the tenant to continue tenant for another 
 year, "provided he could not obtain a tenant for the farm at the 
 rent it appeared to him to be worth, by the 1st of August, and the 
 tenant had refused to allow a party who had applied for the farm 
 
252 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to go over it, it was ruled, that it was an implied condition of the 
 agreement that the tenant should permit persons applying for the 
 farm to go over it, and that having refused to do so, the agreement 
 was at an end, and the landlord might proceed by ejectment to 
 recover the farm immediately after Michaelmas, 1835, although no 
 new tenant was obtained. {Doe v. Hunt, 1 Mees. & Wels. R. 690.) 
 
 Where, after the expiration of -a written notice to quit a coal 
 mine, given by the tenants, they continued for two months working 
 out certain portions of the coal which they considered it was venal 
 for the tenants to take on abandoning such a work, it was decided 
 to be a question for the jury, whether or not the tenants, in 
 remaining for two months, intended to waive the notice, and con- 
 tinue the tenancy. {James v. Shears, 4 Adolph, & Ell. E. 832.) 
 But it has been held by the courts in this country, that merely 
 permitting the tenant to remain in possession after the expiration 
 of notice is not a waiver of the notice. {Boggs v. Black, 1 Bin- 
 ney's E. 333. Yide also Semphill v. Teeis, 4 "Watts & Serg. 
 E. 535.) 
 
 Where a tenancy from year to year has been regularly deter- 
 mined by a notice to quit, the mere accidental detention of the 
 key by the tenant (who has quitted the premises and removed his 
 goods) for two days beyond the expiration of the term, is very 
 properly held not to amount to a waiver of the notice, so as to 
 make the tenant liable to pay for the use and occupation of the 
 premises for another quarter. {Gray v. Bompas, 2 Com. B. E. 
 N. S. 520. Same Case, 103 Eng. C. L. E. 517, 519.) 
 
 These cases show very clearly, that while there are certain acts 
 of the landlord which cannot be qualified, and must of necessity 
 be taken as a confirmation of the tenancy, and must therefore be 
 regarded as a waiver of the notice, in most instances it is all a 
 matter of evidence for the jury to determine what was the inten- 
 tion and understanding of the parties, under the circumstances of 
 each particular case. 
 
 Where a tenancy from year to year subsists between the parties, 
 an ejectment cannot be maintained on a parol notice to quit at a 
 shorter period than half a year, or expiring at a wrong period of 
 the tenancy, notwithstanding the assent of the tenant to such 
 notice, unless such assent be in writing • because the notice being 
 insufficient in itself to determine the tenant's interest, his assent 
 can only make it operative as a surrender of the term ; and as 
 
EJECTMENT AS BETWEEN LANDLOBB AND TENANT. 253 
 
 Buch surrender is not by operation of law, but an actual surrender 
 by agreement between the parties, it is void by the English statute 
 of frauds, which requires thait such surrender should be in writing. 
 
 . This is the rule as gathered from the authorities by Mr. Adams, 
 and it is applicable in this country in those states where similar 
 statutes exist. (Adams on Eject. 155. Doe v. Johnson, 1 McLe- 
 land & Yonge's E. 141. Johnson v. Huddlestone, 4 Barn. & 
 Cres. E. 922.) 
 
 As has been remarked in another place, the relation of landlord 
 and tenant is mutual, and hence the rules respecting notices to 
 
 - quit, when given by tenants, are similar, mutatis mutandis, to those 
 by which notices from landlords are governed. {Doe v. Drowne, 
 8 East's E. 165.) 
 
 It is unnecessary to dwell longer upon the subject of notices to 
 quit, and the rules and principles governing the same, as the large 
 number and variety of authorities considered will enable the prac- 
 titioner to find a guide and a precedent for almost any case that 
 may arise. 
 
 CHAPTEE XIII. 
 I 
 
 THE ACnON OF EJECTMENT AS BETWEEN L ANDLOED AI^D "TENANT — TEEMI- 
 NATION OF A TENANCY BY THE NON-PAYMENT OP BENT — OF THE WAIVEE 
 OF THE POEFEITUEE OF THE ESTATE FOE NON-PAYMENT OP EENT. 
 
 The termination of a tenancy by the non-payment of rent, or the 
 breach of a covenant or condition, arising under the agreement 
 between the parties, and the right to terminate such tenancy for 
 that reason, very seldom occurs but where the tenant has a written 
 lease for a determinate period. The right to terminate a tenan^ 
 from year to year, and the like, by a notice to quit, is given by 
 the common law, while in this case, the right is reserved in the 
 demise itself. 
 
 An actual entry upon lands was necessary under the old practice 
 before an ejectment could be maintained, and the claimant's title 
 had to be of such a nature as to render such an entry lawful. 
 Consequently, where there was a lease for years, the right of the 
 possession of the demised premises was thereby transferred to the 
 tenant, and the landlord could not legally enter upon the land 
 
254: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 during the continuance of the term, although the tenant might 
 neglect to pay the rent secured, or otherwise disregard the condi- 
 tions of the lease. As a means of obviating this difficulty, it 
 became the practice of landlords to insert in their leases a proviso 
 declaring the lease forfeited if the rent remained unpaid for a 
 specified time after it became due, or if any other particular cove- 
 nant of the lease was broken by the lessee, and empowering the 
 landlord in such cases to re-enter upon and re-occupy the land. 
 (Adams on Eject. 157.) 
 
 When these provisions in leases were first introduced, the prac- 
 tice required actual entries to be made in these, as in all other 
 cases, before advantage could be taken by ejectment jof the forfeit- 
 ure of the lease. This useless form was long since abolished in 
 England and in most of the American states; but the right to 
 make the entry is, of course, necessary, and, therefore, the provisos 
 in the leases are continued to the present day in their ancient 
 form. {Little v. Heaton, 1 Salk. R. 358. Goodright v. Cater, 
 
 2 Doug. R. 477. Anonymous, 1 Yent. E. 248. Wither v. Gibson, 
 
 3 Keb. R. 218.) The questions arising under these provisos in 
 leases authorizing a re-entry upon the premises in case of non-per- 
 formance of covenants and conditions, are of considerable import- 
 ance, and deserve a careful examination. 
 
 I. The principle may bb obvious, but it may with propriety be 
 stated, that the landlord, having the Jus disponendi, may annex 
 whatever conditions he pleases to his grant, provided they be 
 neither contrary to the laws of the state, nor to the principles of 
 nature, or public policy ; and it is by these general maxims per- 
 sons must be guided when called upon to consider the validity of 
 any particular) covenant in a lease. 
 
 Limitations, conditions and covenants may all be found in the 
 same lease, but there is in some respects, a wide distinction 
 between them ; a limitation determines the estate when the period 
 of limitation arrives, without entry or claim. Of this element in 
 the lease, nothing need be said here. A condition does not defeat 
 the estate until entry by the grantor or lessor, or his heirs ; and 
 upon entry, the grantor or lessor is in as of his former estate. It 
 is an express qualification of the estate contained in the lease, 
 whereby the estate granted shall either commence, be enlarged, or 
 be defeated, upon performance or breach of such qualification or con- 
 dition. The instances of conditions which now most frequently 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 255 
 
 arise in practice are those contained in leases or grants between 
 lessor and lessee, and are principally conditions subsequent, pro- 
 vided for in the several clauses of re-entry in case of a breach of 
 any stipulation in the lease. 
 
 A covenant is a mutual promise contained in the deed or lease 
 between the lessor and lessee, to do or forbear doing a specific act 
 or specific acts;, a condition and a covenant are frequently created 
 in a lease by the same form of words, and the distinction between 
 the two is illustrated by the case put by Coke. "When the proviso 
 comes alone it is a condition ; but he says if a man by indenture 
 lets lands for years, "provided always, and it is covenanted and 
 agreed between the said parties, that the lessee should not alien ;" 
 this is a condition by force of the proviso, and a covenant by force 
 of the other words. (1 Inst. 203 h.) In case the condition is 
 broken, the lessee may elect to which he will resort, for he cannot 
 have both, as they are incompatible remedies. 
 
 If an express condition in a lease be impossible at the time of 
 its creation, or afterward becomes impossible by the act of God 
 or the act of the lessor himself, or if the same be contrary to law, 
 or repugnant to the nature of the estate, it will not be binding ; in 
 which case, if the condition be a condition subsequent, that is to 
 be performed after the estate is vested, the estate will become abso- 
 lute in the tenant ; for it is well said, that he has by the lease, in 
 such case, an estate vested in him, which cannot be defeated after- 
 ward by a condition either impossible, illegal or repugnant. But 
 if the condition be precedent, or to be performed before the estate 
 vests, and the same be void for illegality or repugnancy, the void 
 condition being precedent, the estate which depends thereon will 
 be also void, and the lessee will take nothing by the grant ; for he 
 has no estate until the condition be performed. (2 Black. Com. 
 156, 157. Coke's Litt. 206.) 
 
 All the instances of conditions against law, in a proper sense, 
 are reducible under one of three heads : 1. To do something that 
 is malum in se, or malum prohibitum. 2. To omit the doing of 
 something that is a duty. 3. To encourage such crimes or omis- 
 sions. {Mitchell V. Reynolds, 1 P. Wms. K. 189.) Questions of 
 this kind very seldom arise under a lease, but the principle will 
 apply to a lease. 
 
 Repugnant conditions are either repugnant to the language of 
 the grant, as a condition in a grant to the grantee and his , 
 
256 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 that the heirs should not inherit ; or they are repugnant to reason, 
 as a condition in the conveyance of a farm, that the grantor should 
 not put a weather-cock on the barn, or any other absurd condition, 
 the observance of which would not be of any advantage to the 
 grantor. {Eoe v. GalUers, 2 Term E. 133.) Courts of justice 
 will not enforce a condition, the enforcement of which may be of 
 injury to the grantee, and cannot benefit the grantor, or any one 
 else. The law takes cognizance only of property, and rights and 
 wrongs. It will not enforce idle conditions or contracts, from the 
 enforcement of which no one can derive advantage. ( Vide New- 
 kirlc V. Newhirh, 2 Caines' R. 345.) But although a condition, to 
 be valid, must not be idle and useless, it need not be the grantoi 
 who is to be benefited by its performance ; it is sufficient if the 
 performance may be beneficial to some one. {Bowen v. Bowen, 
 18 Conn. E. 535. Stuyvesant v. Mayor of New Yorh, 11 Paige's 
 E. 414.) These principles are called into requisition more fre- 
 quently in connection with conveyances of the fee than with 
 leases, and yet they may apply to conditions in a demise. 
 
 A covenant by a lessor, that, if the lessor or his assigns shall be ' 
 minded to sell or dispose of their interest, they may do so, first 
 giving the pre-emption to the lessee, and paying one-tenth of the 
 purchase money to him ; provided, that, if these be not done, the 
 lease shall be forfeited, has been held to be valid ; and extends not 
 only to an immediate assignment by the lessor, but to his assignee, 
 either by operation of law or voluntary sale. And if the latter 
 assign, without offering the pre-emption, and paying the tenth of 
 the money, the lease is forfeited. {Jackson v. Groat, 7 Cow. E. 
 285. And vide Jaokson v. Sohutz, 18 Johns. E. 174.) "While the 
 courts will not create forfeitures by intendment, they will always 
 enforce the contracts of parties according to their plain provisions. 
 
 In estates for lives or years, conditions in restraint of alienation 
 are lawful. The books are full of cases in which they have been 
 sanctioned in England. (Piatt on Covenants, 404.) And the 
 same doctrine has been repeatedly recognized in the American 
 states. Covenants and conditions in restraint of alienation, have 
 been repeatedly held lawful and binding between landlord and 
 tenant. {Jackson v. Silvernail, 15 Johns. E. 278. Jackson v. 
 Shute, 18 ib. 174.) Covenants of this description, however, have 
 always been construed by courts of law with the utmost jealousy 
 to prevent the restraint from going beyond the express stipulation 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 257' 
 
 of the parties. But the power of the lessor to impose such con 
 ditions, is undoubted. The foundation of the power of the lessor 
 to restrain alienation in such cases, rests exclusively upon his 
 ownership of the reversion. Brooke says: "If a man have lands 
 for a term of years on condition that he shall not grant over his 
 estate, this is good by reason of a reversion remaining in the 
 lessor." (Brooke's Abridgment, Condition, 57 a.) It was con- 
 ceded in a comparatively late case in the ISTew York court of ap- 
 peals, that in estates for life or years, conditions in restraint of 
 alienation are lawful. {De Peyster v. Michael, 6 N. Y. E. 467.) 
 
 A condition in a lease not to sell or dispose of any wood or tirriber 
 oif and from the demised premises, without permission in writing 
 from the landlord, was held by the supreme court of the state of 
 New York to be a good and valid condition, and that a breach 
 thereof would work a forfeiture of the estate. Nelson, C. J., in 
 pronouncing the opinion of the court, remarked that a covenant 
 not to commit waste, must be construed with reference to the state 
 of the country at the time of the demise. But that the condition 
 ■prohibiting the sale of amj wood or tirriber operates as an express 
 restraint upon the general right of the tenant, of cutting down 
 timber and disposing of it, that might probably otherwise be claimed 
 to flow from the interest acquired under the lease. ( Yerplanh v. 
 Wright, 23 Wend. E. 506.) Such a clause in a lease as that con- 
 tained in the case in "Wendell should be considered a covenant in 
 express terms, as well as a condition. If one makes a lease for 
 years by indenture, provided always, and it is covenanted and 
 agreed between the parties that the lessee shall not alien, this is 
 both a condition and a covenant. (Bacon's Abr. tit. " Condition," 
 letter G. Co. Litt. 203 5. Shep. Touchstone, 122.) 
 
 Mr. Adams states that in his time there was only one decided 
 case to be found in the English authorities upon the subject of the 
 validity of covenants in a lease, and that one he refers to, and 
 briefly considers. The lease in that case was for twenty-one years, 
 and the proviso, that the landlord might re-enter, if the tenant 
 became bankrupt. This proviso was held to be valid, upon the 
 principle that it is reasonable for a landlord to restrain his tenant 
 from assigning, so it is equally reasonable for him to guard against 
 such an event as bankruptcy, for the consequences of bankruptcy 
 would be an assignment ; and that such a proviso is not contrary 
 to any express law, nor against reason or public policy, for it is 
 33 • ' ' 
 
258 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 a proviso which cannot injure the creditors, who would not rely 
 on the possession of the land by the occupier without a knowledge 
 also of the interest he had therein ; and to discover this they must 
 look into the lease itself, where they would find the proviso that 
 the tenant's interest would be forfeited in case of bankruptcy. 
 BuUer, J., in his judgment in the case, made a distinction between 
 leases for short terms, and very long leases, with respect to pro- 
 visos of this nature ; because if they were to be inserted in very 
 long leases, it would be tying up property for a considerable length 
 of time, and be open to the objections of creating a pei'petuity ; 
 but he afterward adds, that the principal ground of his decision 
 was, because it was a stipulation not against law, nor repugnant 
 to anything stated in the former part of the lease, but merely a 
 stipulation against the act of the lessee himself, which it was com- 
 petent for the lessor to make. (Adams on Eject. 159. Hoe v. Gal- 
 liers, 2 Term E. 133.) But since the decision in the case of Hoe 
 V. GalUers many cases have been decided both in England and 
 in this country involving the validity of conditions, both in con- 
 veyances of tlse freehold, and in leases for a term ; and as has been- 
 before shown, such conditions are upheld, with certain specified ex- 
 ceptions, and it is quite obvious that such conditions as are annexed 
 to estates for years, are, as a general thing, more favored than those 
 which tend to defeat a freehold estate ; as, for instance, a grant to 
 one of a fee, with a condition that he should not alien his estate 
 to any one, would be void, while such a condition annexed to the 
 estate of a lessee for years might be upheld. (1 Wash, on Real 
 Prop. 414, 415. Burton's Eeal Prop. § 852. And vide Smith v. 
 Atkins, 18 Yt. R. 461. Cooper v. Cole, 88 ib. 191.) 
 
 Covenants in leases are either express or itnplied, but usually 
 they are expressed, and sometimes they are protected by a condi- 
 tion, avoiding the estate, and working a forfeiture in case of a 
 breach by the tenant. The breach of siich condition makes the 
 estate voidable at the election of the lessor or his assigns. The 
 condition of forfeiture may be inserted for the non-payment of 
 rent, or for any other default, or improper conduct of the tenant, 
 according to the agreement of the parties. Sometimes the matter 
 of the forfeiture of tenancies is regulated by statute, and those 
 cases will be referred to in another chapter. 
 
 II. The next thing in order is to consider the acts or omissions 
 which will amount to a breach of any particular covenant con- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 259 
 
 tained in a lease, and the proceedings at common law, and under 
 the English statute, on the clause of re-entry for the non-paj'ment 
 of rent, reserving the subject of such proceedings under the stat- 
 utes of the several states for a subsequent chapter. 
 
 The power usually reserved in leases to landlords to re-enter in 
 case the rent shall remain in arrear for a certain time, is the most 
 common proviso upon which ejectments for forfeitures are formed, 
 and several provisions are made both by the common law and the 
 English statute by which ejectments brought upon such provisos 
 are regulated. 
 
 At the time when provisos for re-entry were first introduced, says 
 Mr. Adams, it was unfortunately the practice to disfigure our legal 
 maxims with endless subtleties and distinctions ; and the prelimi- 
 naries required by the common law before a landlord can bring 
 ejectment upon a clause of re-entry for non-payment of rent, are 
 BO numerous as to render it next to impossible for any unversed in 
 the practice of the courts, to take advantage of a proviso of this 
 nature. (Adams on Eject. 160.) These preliminaries, as stated 
 in a note in Saunder's Reports, are : " First, a demand of the rent 
 must be made, either in person or by an agent properly authorized. 
 Secondly, the demand must be of the precise rent due : for if he 
 demand a penny rhore or less it will be ill. Thirdly, it must be 
 made precisely upon the day when the rent is due and payable 
 by the lease, to save the forfeiture ; or where the proviso is that 
 if the rent shall be behind and unpaid by the space of thirty or 
 other number of days after the day of payment, it shall be lawful 
 for the lessor to re-enter ; a demand must be made on the thirtieth 
 or other last day. Fourthly, it must be made a convenient time 
 before sunset. Fifthly, it must be made upon the land, and at the 
 most notorious place on it. Therefore if there be a dwelling house 
 upon the land, the demand must be at the front or fore door, 
 though it is not necessary to enter the house notwithstanding the 
 door be open ; but if the tenant meet the lessor either on or off the 
 laud at any time of the last day of paynient, and tender the rent, 
 it is sufiicient to save the forfeiture, for the law leans against 
 forfeitures. Sixthly, unless a place is appointed where the rent is 
 payable, in which case the demand must be made at such place. 
 Seventhly, a demand for the rent must be made in fact, although 
 there should be no person on the land ready to pay it." (1 
 Saund. E. 287, note 16.) For authority to sustain the first proposi- 
 
260 'law of ejectment and adverse enjoyment. 
 
 tion, a case is referred to, decided in the court of king's bench in 
 1806, in which it was objected at the trial that thedemand of the 
 rent had been made by a witness, who told the defendant that he 
 had power for the purpose, but though it appeared that the witness 
 had such a power of attorney with him at the time, yet it was not 
 produced to the defendant, which it ought regularly to have been, 
 especially to induce a forfeiture ; for otherwise the defendant might 
 not be assured that he had theauthority he assumed to have. In 
 respect to this objection, Lord Ellenborough, C. J., remarked : " It 
 was necessary that the person who demanded the rent should be 
 clothed with a proper authority to do so, and that he should notify 
 it to the tenant * * * but if the tenant was satisfied without 
 the production of the power of attorney, it was not necessary to 
 produce it." {Roe v. Davis, 7 East's K. 363.) And as authority 
 for the second and fourth propositions inclusive, reference is made 
 to a case in Carrington & Payne, wherein it is substantially held 
 that demand must be made of the precise rent due, iy the non- 
 payment whereof the forfeiture will ie incurred ; as a quarter's 
 rent, if the rent be made payable quarterly ; half year's rent, if 
 payable half yearly, and so forth ; and that if there be any 
 previous arrears of rent, and the rent demanded include such 
 arrears, it will not be sufficient to work a forfeiture. It was also 
 decided in the same case that the demand for the rent ought to be 
 made at the last hour of the day, at sunset. {Doe v. Paul, 3 
 Carr. & Pa. E. 613.) 
 
 It has been held that in ejectment to recover premises forfeited 
 for non-payment of rent, a difference between the amount of the 
 rent proved due and the amount demanded in lessor of plaintiff's 
 particulars, is not material. {Tenny v. Moody, 3 Bing. E. 3. Same 
 Case, 11 Eng. 0. L. E. 12.) But it was decided by the supreme court 
 of the state of New York, that in order that the landlord may 
 maintain ejectment at common law for the non-payment of rent, 
 he must comply with all the common law requirements ; such as 
 the demand of the precise amount of rent on the day it fell due, at 
 a convenient time before sundown. {Jackson v. Kipp, 3 "Wend. E. 
 230.) And in a still earlier case, decided by the same court, it was 
 held that the lessor could not re-enter on the ground of forfeiture 
 for the non-payment of rent, without showing a demand of the 
 rent due on the last day, from the tenant on the premises, a con- 
 venient time before sunset, or a strict compliance with the formal- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 261 
 
 ities required by tlie common law ; for the reason that the claim 
 of the lessor is regarded stricti juris. {Jackson v. Harrison, 17 
 Johns. E. 66 ; vide Remsen v. ConMin, 18 ib. 447.) It has also 
 been held by the courts in Pennsylvania, that before the grantee 
 of a rent-charge can enter for non-payment of rent, he must 
 demand the precise amount due, on the day it became due, on the 
 most notorious part of the land ; and this, though the premises be 
 vacant and there be nothing to distrain. {McOormick v. Connell, 
 6 Serg. & Rawle's E. 151.) 
 
 It seems that before the English statute, when the common law 
 prevailed, it was the practice of the courts to relieve the tenant 
 and set aside the forfeiture, even after judgment in ejectment, at 
 any time before execution on judgment, by the payment of the debt 
 and costs ; and the tenant might apply for relief in a court of 
 equity at any time. ( Vide Downs v. Turner, Salk. E. 597 ; 
 Anonymous, 'ib. 287 ; Phillips v. BooUttle, 8 Modern R. 345 ; 
 Smith V. Parks, 10 ib. 383 ; Goodtitle v. Holdfast, 2 Strange's E. 
 900.) And the same practice still prevails when the ejectment is 
 brought upon a clause of re-entry, and less than six months' rent 
 is due, unless dispensed with by the expi'es's words of the lease, 
 although the statute has modified the practice somewhat when 
 above six months' rent is in arrear. ( Vide Doe v. Masters, 2 Barn. 
 & Cres. E. 490.) 
 
 By the English statute it is enacted, that in all cases between 
 landlord and tenant, as often as one-half year's rent shall be in 
 arrear, and the landlord has a right by law to re-enter for the non- 
 payment, he may, without any formal demand or re-entry, proceed 
 by ejectment to recover the premises ; and in case a declaration can- 
 not be served, or no tenant be in actual possession, he may aflSx 
 the same upon the outer door of the messuage, or if no messuage, 
 then upon some notorious part of the demised premises, and such 
 affixing shall be deemed legal service, and stand in the stead of a 
 demand and re-entry ; and in case of ejectment against the casual 
 ejector, or nonsuit for not confessing, it shall be made to appear 
 to the court by affidavit, or be proved upon the trial, in case the 
 defendant appears, that half-a-year's rent was due before the declara- 
 tion was served, and tljat no sufficient distress was to be found on 
 the premises, countervailing the arrears then due, and that the 
 lessor in ejectment had power to re-enter; that then the lessor 
 shall recover judgment and execution, in the same manner as if 
 
262 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the rent in arrear had been legally demanded, and a re-entry made ; 
 and in case the lessee shall suffer judgment to be recovered on such 
 judgment, and execution executed thereon, without paying the 
 rent and costs, and without filing any bill for relief in equity, 
 within six calendar months after such execution executed ; then 
 such lessee, and all other persons claiming a delivery under the 
 said lease, shall be barred from all relief or remedy in law or 
 equity, other than by writ of error, for reversal of the judgment, 
 and the landlord shall hold the premises discharged from the 'lease, 
 provided that the right of any mortgagee of such lease, who shall 
 not be in possession, shall not be barred, so as such mortgagee shall, 
 within six calendar months after judgment and execution, pay all 
 rent in arrear, and all costs and damages sustained by the lessor, 
 and perform all the covenants and agreements of the lease. 
 
 It is further provided, that, in case the lessor shall, within the 
 time aforesaid, file a bill for relief in equity, he shall not have or 
 continue any injunction against the proceedings at law, unless he 
 shall within forty days next after a full answer shall be filed by 
 the lessor of the plaintifi", bring into court such sum of money as 
 the lessor shall, in his answer swear to be due and in arrear, over 
 and above all just allowances and costs, there to remain till the 
 hearing of the cause, or to be paid out to the lessor on good security, 
 subject to the decree of the court, and in case such bill shall be 
 filed within the above named time, and after execution is executed, 
 the lessor of the plaintiff shall be accountable only for so much, 
 and no more, as he shall really and hona fide make of the demised 
 premises from the time of their entering into possession ; and if 
 what shall be so made by the lessor happen to be less than the 
 rent reserved, then the lessee, before he shall be restored to his 
 possession, shall pay such lessor what money so by them made, fell 
 short of the reserved rent, for the time such lessor held the lands. 
 
 And another section of the statute provides, that if the tenant 
 shall, before the trial of the ejectment, pay or tender to the lessor 
 or his attorney, or pay into court, all the rent and arrears and costs, 
 then all further proceedings shall cease ; and if such lessor shall, 
 upon any bill, be relieved in equity, he shall hold the demised 
 lands, accordinEf to the lease, without any. new lease being made. 
 (4 Geo. II, ch. 28.)* 
 
 * Tlie statute of 4 George II, chapter 28, lias been amended, or rather modified, 
 by an act passed in 1853, but not to such extent as to render the decisions under the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 263 
 
 The provisions of this statute have been held to be general in 
 their operation, and extend to all cases where there is six months' 
 rent in arrear, and a right of re-entry in the landlord ; except the 
 provision which dispenses with the formalities required by the 
 common law upon a clause of re-entry for non-payment of rent, 
 applies only to cases where six months' rent is in arrear, and there 
 is no sufficient distress upon the premises to satisfy the rent in 
 arrear. ( Vide Roe v. Davis, 1 East's E. 363.) 
 
 Mr. Adams gathers from tlie authorities that the legislature had 
 four diiferent objects in view in the enactment of this statute. 
 First, to abolish the idle form of a demand of rent, where no 
 sufficient distress can be found upon the premises to answer that 
 demand ; secondly, in cases of beneiicial leases which may have 
 been mortgaged, to protect the mortgagees against the fraud or 
 negligence of their mortgagors ; thirdly, to render the possession 
 of the landlord secure, after ■ he has recovered the lands ; and 
 fourthly, to take from the court the discretionary power they for- 
 merly exercised, of staying the proceedings, at any stage of the 
 case, upon payment of the rent in arrear, and costs. The first of 
 these objects, he says, is affected by permitting the landlord to 
 bring his ejectment without previously demanding the rent ; the 
 second, by permitting a mortgagor, not in possession, to recover 
 back the premises at any time within six months after execution 
 executed, by paying all the rent in arrear, damages, and costs of 
 the lessor, and performing all the covenants of the lease ; the 
 third, by limiting the time for the lessee or his assigns to make an 
 application to a court of equity for relief to six calendar months 
 after execution executed ; and fourth, by limiting the application 
 of the lessor to stay proceedings, upon payment of the rent in 
 arrear and costs to the time anterior to the trial, and making it 
 compulsory upon the court to grant the application when properly 
 made. ' 
 
 The marginal . note in one case construes the doctrine of the 
 court to be, " that the mortgagor of a lease has the same title to ■ 
 relief, against an ejectment for non-payment of rent, and upon the 
 same terms, as the lessor against whom the recovery is had." {Doe 
 
 statute of 4 George II, chapter 28, out of place, or to supersede the necessity of 
 giving the result of these decisions in this connection. The essential provisions 
 of the act of 1853 will be found at a subsequent point in this chapter. 
 
264 LAW OF EJECTMENT AND ADVERSE ENJOTIIENT. 
 
 V. jRoe, 3 Taunt. E. 402.) But, as has been well intimated in a 
 foot note in Adams on Ejectment, this marginal note in Taunton 
 fails to express fully the policy of the statute in the particular 
 referred to, because, by the provisions of the statute, a lessee can 
 only have relief against an ejectment for a forfeiture, upon paying 
 the arrears of rent and costs of suit into court hefore trial, whereas 
 a mortgagee inay obtain relief upon paying the arrears, costs and 
 damages at any time within six months after execution executed. 
 The statute speaks for itself in very plain terms, and the marginal 
 note in Taunton by no means enunciates the real design and scope 
 of the pi'ovision. 
 
 The statute, it will be observed, dispenses with a demand for 
 rent in these cases only where there is no sufficient distress upon 
 the premises as well as six months' rent in arrear. It follows, 
 therefore, that it is still necessary for the lessee to comply with all 
 the formalities of the common law, before he can proceed upon a 
 clause of re-entry for non-payment of rent, if a sufficient distress 
 can be found. Indeed, this has been expressly so adjudicated by 
 the courts. {Vide Doe v. Wandloss, 7 Term E. 117. J)oe v. 
 Jioison, 2 Carr. & Pa. E. 245. Doe v. Hoi'seley, 1 Adolph. & 
 Ell. E. 766. Smith v. Spooner, 3 Taunt. E. 251.) 
 
 It has been held, that an insertion in the proviso of the lease, 
 that the right of re-entry shall accrue upon the rent ieing lawfully 
 demanded, will not render a demand necessary if there be no 
 sufficient distress, for the reason that it is only stating in express 
 words that which is in substance contained, from the principles 
 of the common law, in every proviso of this nature ; although 
 Lord EUenborough, C. J., expressed the opinion, that, where the 
 words "ieing lawfully demanded" were inserted in a proviso for 
 re-entry, they were to be considered as a stipulation between the 
 parties that the rent should be in fact demanded (though not with 
 the strictness of the common law) before ejectment brought. But 
 the other- judges did not concur in this opinion, and the decision 
 . of the court was as above stated. {Doe v. Alexander, 2 Moore & 
 Scott's E. 525.) 
 
 The landlord cannot proceed in ejectment to recover premises as 
 forfeited by the tenant, if there is, on any part of them, property 
 that may be distrained sufficient to satisfy the rent ; or at least, 
 .this must be the rule in ordinary cases. It was so held by the 
 Bupreme court of the state of New York, when the same policy 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 265 
 
 existed there as in .England, in a case where it appeared that the 
 tenants of a large tract of land, demise^ to them, made a partition 
 among themselves thirty years before the action was brought, and 
 ever since had held and enjoyed the portion allotted to each in 
 severalty, the landlord, not having been a party to the partition, 
 the court held, could not proceed by action of ejectment for the 
 recovery of a subdivision of such tract, on the ground of a want 
 of sufficient distress on such subdivision, it appearing that on the 
 residue of the tract there was sufficient property to countervail 
 the rent. {Jackson v. Wyckoff, 5 Wend. E. 53.) Had the land- 
 lord been a party to the proceedings in partition, or in any other 
 way become barred by it, it is fair to presume, that the decision 
 would have been different. Marcy, J., in his opinion, observed : 
 " The landlord, it is true, is not contesting the partition or denying 
 its obligatory force on him, but the question is to/ be determined 
 by the same rules of law as if he was ; for if it is not reciprocally 
 binding upon the landlord and tenants, the former ought not to be 
 permitted to affirm its validity to work a forfeiture of a part of the 
 trust, and still be at liberty, as respects other parts of it, to impeach 
 its validity. I see nothing in the case which impairs his right to 
 enter upon the premises in question, on any other subdivision of 
 the tract, and dislr^in, if he found sufficient property thereon, for 
 all the arrears of rent due on the whole ; and if this right remains 
 to him, he cannot be permitted to affirm the partition for the pur- 
 pose of forfeiting the tenant's title to the part now in question." 
 
 It has been held by the English courts, that in order to dispense 
 with the demand for rent, it is necessary that full evidence should 
 be given that no sufficient distress was to be found upon the prem- 
 ises, by showing that strict search has been made in every part of 
 the premises. {Rees v. Ki/ng, cited 2 Ball & Beatty's K. 514.) 
 The rule will be different, however, if the landlord can show 
 th^t he was prevented by the tenant from entering to distrain, the 
 words " no sufficient distress " having been ruled by Lord Teater- 
 den to mean, "no sufficient distress which can be got at." {Doe 
 V. Dyson, 1 Mood. & Malk. E. . 77.) And it has been further 
 decided, that, when upward of six months' rent is in arrear, the 
 demand will not be dispensed with, if there be a sufficient distress 
 to counteract the ari-earvof six months, though insufficient to meet 
 the whole amount due. {Doe v. Boe, 9 Bowling's Practice Court 
 E. 548.) \ 
 
 84 
 
266 LAW OF EJECTMENT AND ADVERSE ENJ0Y3IENT. 
 
 The general rule clearly is, that a demand- is cecessary before 
 a landlord can re-enter for non-payment of rent, unless six 
 months' rent is in arrear, and there is not a sufScient distress on 
 the premises ; or unless the necessity of a demand is waived by the 
 tenant by express agreement. {Goodright v. Cator, 2 Doug. E. 
 483, 486.) The supreme court of the state of New York decided, 
 in an early case, that the plaintiff, if he proceed under the statute 
 for the non-payment of rent, must show that there was no sufficient 
 distress on the premises ; or, if he proceed at common law, he must 
 prove a demand of the rent. But if the tenant deny the title of 
 the lessor, and disclaim by parol to hold under him, this is a waiver 
 of the necessity of the demand. {Jackson v. Collins, 11 Johns. R. 1.) 
 And in a case decided by the New York court of appeals, the doc- 
 trine was laid down, that where the remedy for breach of covenant 
 to pay, or for non-payment of rent, is by way of reentry by a com- 
 mon person, there is but a single exception to the rule of the com- 
 mon law, that there must be an actual demand made of the rent 
 previoxTS to tlie entry ; and that occurs where the parties liave stipu- 
 lated in the lease that a re-entry may be made for a default of pay- 
 ment of rent without a demand of it. It was declared by the court 
 that in all other cases M'here this remedy by re-entry for the non- 
 payment of rent, or for a breach of the covenant to pay rent, is 
 reserved by the lease, and the landlord pursues it under the pro- 
 visions of the common law, it is indispensable to his right to re-enter, 
 that he should, either in person, or by his agent or attorney duly 
 authorized, previously, on the very day upon which the rent becomes 
 due and payable, at a convenient time before sunset, in which the 
 money may be counted before night, make an actual demand of 
 the exiict amount of the rent due, at the particular place at which 
 the rent may be made payable by the terms of the lease ; or if 
 there be no place stipulated in the lease, then at the most notorious 
 place upon the land demised, which, if there be a dwelling-house, is 
 the front door thereof ( Van Rensselaer v. Jewett, 2 N. Y. R. 141.) 
 
 Where a lease contains a proviso, that, if the rent is in arrear so 
 many days, the lessee might re-enter, " although no legal or formal 
 demand should be made," the courts hold that no actual re-entry 
 or demand of rent is necessary, in order to bring and maintain an 
 ejectment. In such case, the demand of the rent is dispensed with 
 by the terms of the proviso, and all that is requisite is, that the 
 rent has been in arrear the requisite numbeaiof days. {Harris 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 267 
 
 V. Masters, 2 Barn. & Ores. K. 490. Same Case, 9 Eng. C. L. 
 E. 217.) 
 
 In the case in East hereinbefore referred to, the position was 
 taken by counsel, that the statute only applied to cases of ejectment 
 brought after half-a-year's rent due, where no sufficient distress 
 was to be found upon the premises ; but Lord Ellenborough, C. J., 
 observed : " The statute is more general in its operations ; for, though 
 the fourth clause has the word such (such ejectment), yet the second 
 clause to which it refers is in the disjunctive ; stating first, that in 
 all cases between landlord and tenant, where half-a-year's rent 
 shall be in arrear, and the landlord has a right of re-entry for non- 
 payment thereof, he may. bring ejectment, etc., or in case the same 
 cannot be legally served, etc., or in case such ejectment shall not 
 be for the recovery of any messuage, etc., and in case of judgment 
 against the casual ejector, or nonsuit for not confessing lease, entry, 
 and ouster, it shall appear by affidavit, or be proved upon the trial, 
 in case the defendant appears, that half-a-year's rent was duo before 
 the declaration served, and that no sufficient distress was to be 
 found on the premises, and that the lessor had power to re-enter ; 
 thereon, and in every such case-, the lessor in ejectment shall recover 
 judgment and execution," etc. {Eoe v. Davis, 7 East's E.. 363.) 
 The principle decided in this case would seem to appl}' generally 
 to all the provisions of the statute, as well as the one then before 
 the court, which involved simply the provision in respect to stay- 
 ing proceedings in the action of .ejectment upon payment of the 
 rent in arrear, and the costs before trial. 
 
 In case the lessee should suffer judgment in the action of eject- 
 ment to go against the casual ejector by default, there is no express 
 provision of the statute for his relief ; but the courts have held 
 that a judgment is not equivalent to a trial, and they therefore 
 grant relief to the lessee at any time before execution actually 
 executed. {Goodtitle v. Holdfast, Stran. E. 900. Doe v. Masters, 
 2 Barn. & Ores. E. 490. Vide Doe v. Suffield, 5 Dowl. P. C. 660.) 
 
 The courts have decided that the tenant may tender the rent in 
 arrear after the lessor has given instructions to his attorney to com- 
 mence an action to recover the demised premises, and before the 
 declaration has been delivered, notwithstanding the words of the 
 statute extend only to cases where the rent and costs are tendered 
 to the lessor, or paid into court after action brought ; and in one 
 case where the lessor of the plaintiff served his papers, and under- 
 
268 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 took to go on with his action under the circumstances supposed, 
 the court set aside the proceedings, although it was urged hy the 
 lessor that such tender was merely matter of defense, at the trial. 
 {Goodright v. NorigU, "W. Black. E. 746.). 
 
 If ejectment is brought on a clause of re-entry in the lease for 
 not repairing, as well as for rent in arrear under the statute, the 
 courts hold that the tenant may tender the amount of rent in arrear, 
 and the costs of the action, to the lessor, or pay the same into 
 court, when the proceedings will be stayed ; with liberty however 
 for the lessor to proceed on any other title. {Pure v. Sturdy, 
 BuUer's IST. P. 97.) But when the lessor has recovered possession 
 of the premises, a court of equity will not grant relief under the 
 statute if the recovery was in consequence of the breach of other 
 covenants and conditions, as -well as the non-payment of rent. 
 Wadman v. Calcraft, 10 Yesey'^ E. 67.) 
 
 "When the lessees of the plaintiff were both devisees and execut- 
 ors, and in each capacity rent was due to them, the defendant 
 moved to stay proceedings on payment of the rent due to me 
 lessees of the plaintiff as devisees, they not being entitled to bring 
 ejectment as executors ; there appeared to be a mutual debt to the 
 defendant by simple contract, and the defendant offered to go into 
 the whole account, taking in both demands, as devisees and exe- 
 ecutors, having just allowances, which the lessors of the plaintiff 
 refused ; the rule was made absolute to stay proceedings on pay- 
 ment of the rent due to the lessors or devisees, and costs. {Jack- 
 worth V. Tunstall, Barnardiston's E. 184.) 
 
 It may be a satisfaction to the practitioner to state that the pro- 
 ceedings in these cases may be stayed, either by moving the court, 
 or in vacation time by summons ; that is to say, such is the prac- 
 tice under the English statute. (2 Sell. Pr. 127.) 
 
 In moving for judgment against the casual ejector in an eject- 
 ment brought under the provisions of the English statute, the court 
 will not grant a rule for judgment without an alEdavit pursuant to 
 the statute, proving the facts necessary to entitle the plaintiff 
 to re-enter, and also that the declaration was duly served on the 
 tenant in possession, or the facts which will excuse such personal 
 service, and that a copy of the declaration, was affixed on the most 
 notorious part of the premises, stating what part on which it was 
 80 affixed. {Doe v. Hoe, 4 B. Morris' E. 350 ; Doe v. Eoe, lb. 469.) 
 As this may be regarded as simply a question of practice, it may 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 269 
 
 seem to be of but little importance to be stated ; but the English 
 courts, under the late practice, looked upon the matter with con- 
 siderable seriousness ; and it is not quite certain but, under certain 
 circumstances, the want of this affidavit would have been fatal to 
 the judgment. In one case decided in the court of king's bench, 
 wherein it appeared that near twenty years after the landlord had 
 brought an ejectment against his tenant, and judgment had gone 
 against the casual ejector by default, and possession thereupon 
 delivered to the landlord, the tenant brought an ejectment against 
 the same landlord for the same premises, and the former recovery 
 was objected to because the defendant failed to produce such an 
 affidavit as the statute requires as an essential requisite previous to 
 his original recovery. But the court were unanimously of opinion, 
 that from the lapse of years no such evidence was necessary ; but it 
 seems to have been the opinion of Lord Mansfield, that if the lessor 
 of the plaintiff in the second action had proved that in point of fact 
 no affidavit had been made, he would have been entitled to recover. 
 He says: " The general question, ' whether the plaintiff in this last 
 ejectment ought to recover,' depends upon this particillar question, 
 viz. : ' whether the first ejectment was regularly brought and pro- 
 ceeded upon, by the trustees under Thomas Lewis's will, pursuant 
 to the direction specified in the act of 4 Geo. II, ch. 28, § 3.' This 
 last ejectment is brought near twenty years after the former. 
 
 "JS"ow, besides the g'es-erk-l' pres^imption, 'that the proceedings 
 were regular, and omnia solemniter acta, unless something had 
 appeared to the contrary,' and the rule, 'that stdbitur prmsump- 
 Uoni, donee proietur in contrarium' here is, in this case, a 
 DECISIVE fact stated ; which fact is, ' that the proceeding under 
 the first ejectment was undee and by virtue of this act of parlia- 
 ment. * * * And, if it was so, the judgment must have leen 
 founded upon such an affidavit as that act expressly directs and re- 
 quires, viz., an affidavit, 'that half-a-year's rent was due before the 
 declaration in ejectment was served; and that no sufficient distress 
 was to be found upon the demised premises countervailing the 
 arrears then due ; and that the lessors in that ejectment had power 
 to re-enter ;' and the landlord is, by virtue of the act of parlia- 
 ment, to hold the premises discharged from the lease, upon sup- 
 position that his former proceedings were regular." {Doe v. Lewis, 
 1 Burr. E. 614, 618.) But if the judgment was recent, and it 
 appeared that it was entered without the filing of the affidavit 
 
270 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 required, the proper practice undoubtedly would be to move to set 
 the judgment aside for irregularity. And it has been expressly 
 held by the supreme court of the state of New York, that where 
 the landlord, on a clause of re-entry for the non-payment of rent, 
 obtained judgment by-default against the casual ejector, the record 
 of the judgment, without the previous affidavit required by statute 
 being produced, is a sufficient defense to an ejectment, brought by 
 the former tenant for the premises; and that such record of judg- 
 ment is conclusive against the former tenant's action for the 
 premises. {Jackson v. Wilson, 3 Johns. Cas. 295.) 
 
 If the tenant appear in the action, and the ejectment come to 
 trial, the matters required to be set out in the affidavit mentioned 
 must be proved, or tlie action will fail. {Doe v. Lewis, 1 Burr. E. 
 614. And vide Jackson v. Collins, 11 Johns. E. 1.) 
 
 It must be observed, that the statute of 4 George II, chapter 28, 
 has been changed in some respects by an act passed in 1852, but 
 it is thought that the change does not affect, in any substantial 
 degree, the principles of that statute ; and that, therefore, the 
 judicial construction which that act has received, and which is 
 hereinbefore given, is applicable to the law now in force. How- 
 ever, as a matter of safety, the provisions of the present act are 
 here inserted, and are substantially as follows : 
 
 "In all cases between landlord and tenant, as often as it shall 
 happen that one-half year's rent shall ie in arrear, and the land- 
 lord or lessor to whom the same is due hath right by law to 
 re-enter for the non-payment thereof, such landlord or lessor shall 
 and may, without any formal demand or re-entry, serve a writ in 
 ejectment for the recovery of the demiseci premises, or, in ease the 
 same cannot be legally served, or no tenant be in actual possession 
 of the premises, then such landlord or lessor may affix a copy 
 thereof upon the door of any demised messuage, or, in case any 
 such action in ejectment shall not be for the recovery of any mes- 
 suage, then upon some notorious place of the lands, tenements or 
 hereditaments comprised in such writ in ejectment, and such affix- 
 ing shall be deemed legal service thereof, which service or affixing 
 such writ in ejectment shall stand in the place and stead of a 
 demand and re-entry ; and, in case of judgment against the 
 defendant for non-appearance, if it shall be made to appear to the 
 court where the said action is depending, by affidavit, or be proved 
 upon the trial in case the defendant appears, that half a year's rent 
 
.EJECTMENT AS BETWEEN LANDLORD AND TENANT. 271 
 
 ■was due before the said writ was served, and that no sufficient 
 distress was to be found on the demised premises countervailing 
 the arrears then due, then the lessor shall recover judgment and 
 execution in the same manner as if the rent in arrear had been 
 legally demanded, and a re-entry made ; and, in case the lessor or 
 his assignee shall permit and suffer judgment to be had and recov- 
 ered on such trial in ejectment, and execution to be executed 
 thereon, without paying the rent and arrears, together with full 
 costs, and without proceeding for relief in equity within six months 
 after such execution executed, then and in such case the said lessee, 
 his assignees, and all other persons claiming and deriving under 
 said lease shall be barred and foreclosed from all relief or remedy 
 in law or equity, other than by bringing error for reversal of such 
 judgment, in case the same shall be erroneous, and the said land- 
 lord or lessor shall from thenceforth hold the said demised prem- 
 ises discharged from such lease ; and if, on such ejectment, a 
 verdict shall pass for the defendant, or the claimant shall be non- 
 suited therein, then in every such case such defendant shall have 
 and recover his costs ; provided that nothing herein contained 
 shall extend to bar the right of any mortgagee of such lease, or 
 any part thereof, who shall not be in possession, so as such mort 
 gagee shall and do, within six months after such judgment obtained 
 and execution executed, pay all rent in arrear, and all costs and 
 damages sustained by such lessor or person entitled to the remain- 
 der or reversion as aforesaid, and perform all the covenants and 
 agreements which, on the part and behalf of the first lessee, are 
 and ought to be performed." (15 and 16 Yict. ch. 76, sec. 210.) 
 
 It will be observed that the statute of 4 George II, chapter 20, 
 is not essentially varied by this act of 15 and 16 Yictoria, chapter 
 56, section 210 ; but rather that the phraseology is in some respects 
 changed, with an additional provision. Under the provisions of 
 the 210th section of the act of 15 and 16 Victoria, chapter 76, the 
 courts have held that, where three quarters' rent being in arrear 
 under a law containing a clause of re-entry, on non-payment of 
 rent within twenty-one days after each quarter-day, the lessors, on 
 the second of October, distrained, and after sale of the distress 
 there remained due more than a quarter but less than a half year's 
 rent ; and the lessors on the second of JSTovember served the lessee 
 with a writ in ejectment ; the action was not maintainable, there 
 not being half a year's rent in arrear at the time of the service of 
 
272 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the writ. {Cotesworth v. SpoJces, 10 J. Scott's E. IST. S. 103. Same 
 Case, 100 Eng. 0. L. E. 103.) The same doctrine was laid down 
 in a case which arose under the statute of 4 George II, and the 
 ruling was the same under a similar state of facts. {Doe v. Roe, 
 1 Manning, Granger & Scott's E. 134. Same Case, 62 Eng. C. L. 
 E. 132.) 
 
 Where a party agreed to let to another who agreed to take 
 certain premises for a term of years, " at and under the yearly rent 
 of £80," and the agreement contained several specific undertakings 
 by the lessor to do certain things, but there was no specific agree- 
 ment to pay the rent, and a service of re-entry was reserved in case 
 of a breach of " any of the agreements therein contained," the 
 court held that the power extended to the non-payment of rent. 
 {Doe V. Kneller, 4 Carr. & Pa. E. 3.) But if the lease of prem- 
 ises contained no clause of re-entry, the landlord cannot bring 
 ejectment under the statute. {JacTcson v. Hogeboom-, 11 Johns. E. 
 163.) And it seems that if the landlord proceeds to recover the 
 premises on the ground that there is no sufficient distress thereon, 
 the want of such distress must be at the time when the declara- 
 tion in ejectment is served. {Jackson v. Hogeboom, swpra.) 
 
 Where a lease contained two clauses for re-entry, the one in 
 case the yearly rent of £300 was in arrear thirty days after it 
 became payable, and the other in case the yearly rent was in 
 arrear, which was stated to be payable half yearly at Ladyday and 
 Michaelmas ; the court held that the landlord had a right to 
 re-enter on non-payment of each half-year's rent ; the former 
 clause containing the description of the amount to be annually 
 paid, and the latter the times for payments. {Doe v. Oolding, 6 
 Moore's E. 231.) 
 
 It has been held by the supreme com t of Ohio, that in order to 
 show a forfeiture of an unexpired terra of a leasehold estate for 
 non-payment of rent, the, lessor must prove demand of payment 
 of the lessee, when due ; that the demand must appear to have 
 been for "the precise rent due; and to have been made where 
 no place is named for payment, at the most public or notorious 
 place upon the premises ; if a dwelling-house be on the land, at 
 the front door thereof; and further that the demand should be made 
 on the day the rent falls due ; " at a convenient time before sun- 
 set," by which is meant immediately preceding sunset, and for a 
 sufficient space of time for counting and paying the money before 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 273 
 
 sunset, and this is the rule at common law. {Smith v. Whitbeclc, 
 13 Ohio N. S. K. 471.) And it has been held in Indiana that the 
 failure of a tenant to pay rent will not work forfeiture of his 
 estate unless it is so expressed in the lease or agreement ; and 
 such undoubtedly is the law, unless there be a statute making the 
 non-payment of rent a cause of forfeiture. {Brown v. Bragg, 22 
 Ind. R. 122.) And the courts of Indiana also hold that the right 
 of the landlord to re-enter for breach of condition subsequent, is 
 not viewed with favor in the law, and when he claims a forfeiture 
 he must show that he has done everything required on his part to 
 perfect such right of re-entry. {Meni v. Rathhone, 21 Ind. R. 454.) 
 
 III. Mr. Adams very correctly observes that where a forfeiture 
 has occurred upon a clause of re-entry for rent in arrear, such 
 forfeitures will be waived if the landlord do any act after the 
 forfeiture which amounts to an acknowledgment of a subsisting 
 tenancy ; or if he receives rent due at a subsequent quarter, or 
 distrain for that in respect of which the forfeiture accrued, or 
 receives the same and gives a receipt for it as for so much rent, or 
 in which he calls the party his tenant. (Adams on Eject. 173.) 
 
 The supreme court of the state of New York have laid down 
 the rule that in order to render the receipt of rent a waiver of the 
 forfeiture for non-payment of the rent, it is necessary that the 
 rent should have accrued as well as have been received after or 
 subsequent to the forfeiture; holding that it proceeds upon the 
 principle that the lessor, by receiving the rent, affirms the lease to 
 have continuance, as Lord Coke expresses it ; but that can only 
 relate to the time when the rent falls due, and not to the time of 
 its payment ; and so are all the authorities. {Jackson v. Allen, 3 
 Cow. R. 220, 230. Tide also Doe v. Batten, 1 Cowp. E. 243, 
 246. Jenkins v. Church, 2 ib. 482. Goodright v. Davis, lb. 803. 
 Roe V. Harrison, 2 Term R. 425. tPennaufs Case, 3 Coke's R. 
 6i.) The same authorities, however, hold that if the lessor, with 
 a full knowledge of the forfeiture, accept rent which falls due 
 after that event, such receipt and acceptance is a waiver of the 
 forfeiture. Probably the receipt and acceptance of rent after 
 forfeiture, would be regarded as a waiver of the forfeiture ; under 
 about the same, circumstances as the same would be considered a 
 waiver of the notice to quit, which has been fully considered 
 in a previous chapter, to which it may be well to refer. {Ante, 
 chap. 12.) 
 
 85 
 
274 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In the state of Kew Hampshire, the rule has been expressly laid 
 down, that if a lease contain a condition for the re-entrj of the 
 lessee on non-payment of rent, and after a formal re-entry for non- 
 payment, the rent in arrear is paid and accepted, the forfeiture is 
 ■waived. {Coon v. Brickett, 2 N. H. E. 163.) But the courts of 
 California hold, that a forfeiture of a lease is not waived in conse- 
 quence of the lessee's holding over, and no notice to quit being 
 given. {Calderwood v. BrooM, 28 Gal. K. 151.) 
 
 According to the old English authorities, as understood by Mr. 
 Adams, it seems that in the ease of a lease for years, the bare 
 acceptance hj the lessor at a subsequent day of the rent, in respect 
 of which the forfeiture accrued, although before ejectment brought, 
 will not of itself, unless accompanied with circumstances which 
 show an intention to continue the tenancy, bar him of his right to 
 re-enter, because the rent is a duty due to him, and as well before 
 as after re-entry, he may have an action of debt for the same on 
 the contract between the lessor and lessee ; but that in the case of 
 a lease for life, the mere acceptance of such rent will be sufficient 
 to affirm the lease, as the lessee could not receive it as due upon 
 any contract, but must receive it as his rent ; for when he accef)ted 
 the rent he could not have an action of debt for it, but his remedy 
 was by assize, if he had seisen or distress. (Adams on Ejectment, 
 173, vide also Prindle v. Aderson, 19 Wend. R. 391 ; Stedman v. 
 Mcintosh, 5 Ired. R. 571 ; PenarfCs Case, 3 Coke's R. 6i ; Greene's 
 Case ; 1 Leon. R. 262 ; Doe v. Batten, 1 Cowp. R. 243.) 
 
 "Where an ejectment was brought upon a proviso of re-entry for 
 non-payment of rent, and the lessor also commenced an action of 
 covenant for rent accruing subsequently to the day of the demise 
 in the ejectment, and the tenant paid into court the rent demanded 
 in the action of covenant, the forfeiture was held to be waived ; 
 but it seems doubtful whether the commencement of the action of 
 covenant was of itself sufficient to waive the forfeiture. {Doe v. 
 Minshul, Buller's N. P. R. 96.) 
 
 IV. At common law, the act of distraining for the rent in arrear 
 by the lessor is a waiver of the forfeiture ; the forfeiture being 
 absolute and final, the law seized on every pretense to do it away. 
 The receipt of rent after forfeiture, is regarded as a waiver upon 
 the ground that such receipt of rent acknowledges the continuance 
 of the tenancy. This is the same, whatever the sum which is 
 received may be. A stronger acknowledgment of tenancy would 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 275 
 
 seem to arise from a distress. After such an act, the landlord can- 
 not, with any propriety, be heard to say that he has terminated 
 the tenancy. He would perhaps be estopped from holding such 
 language. There are some cases, however, which would seem to 
 warrant the conclusion, that the takii^g of an insufficient distress 
 will not waive a right of re-entry at common law; but on re-ex- 
 amination, it has been found that these cases were misunderstood, 
 and that clearly at common law, the taking of a distress, even 
 though it be insufficient to satisfy the rent, is a waiver of the for- 
 feiture. The rulg is different under the English statute, and in a 
 case arising under that statute, Lord Mansfield, C. J., said : " At 
 common law, if a distress had been taken after an ejectment 
 brought for a forfeiture, the court would lay hold of this or any 
 other grounds they could, to say the landlord had waived his for- 
 feiture, because forfeitures are rendered odious in law. It is like 
 the receipt of rent after the demise, about which there was so long 
 a puzzle. That is now finally settled to be no objection to an 
 ejectment ; it is receiving what the landlord might have recovered 
 in an action for mesne profits. Here the party has a right of re- 
 entry ; then, by statute, he has a right to recover in a particular 
 way, if there is not a sufficient distress. He has distrained since ; 
 that is no presumption of the waiver of his right of entry, because 
 it is inconsistent with it ; it seems a necessary step to ascertain the 
 sufficiency of the diStress." "Willes, J., remarked in the same case . 
 "At common law the landlord had two remedies, a re-entry and 
 distress. The resorting to the latter would have been a waiver of 
 the re-entry ; but if th'e distress be not sufficient, the statute restores 
 that remedy, when by the common law, the waiver had taken 
 it away." {^Brown v. Eaton, 3 Doug. R. 330, cited in Ooodright v. 
 Cordwent, 6 Term E. 220, and reported fully in Adams on Eject- 
 ment, 174, note d.) Tliis case of itself settles two propositions ; 
 first, that at common law the mere act of taking a distress, although 
 an insufficient one, is a waiver of a right of re-entry ; and second, 
 that a right of re-entry for non-payment of rent under the English 
 statute, will not be waived by taking an insufficient distress for 
 that rent, and it has also been held that the taking an insufficient 
 distress, and continuing in possession under such distress after 
 the expiration of the last day for the payment of the rent, will not 
 amount to a waiver of the right of re-entry under the English 
 statute. {Doe v. Johnson, 1 Stark. E. 411.) 
 
276 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The supreme court of the state of New York held, in a case 
 that arose under a statute quite similar to that of the English 
 statute, that a lessor, after distraining for rent in arrear, though 
 the distress be insufficient to satisfy it, cannot afterward bring 
 ejectment on account of the same rent upon the clause of re-entry 
 under the section of the statute concerning distresses, rents, and 
 the renewals of leases. It was held, that the act of distraining 
 waived the forfeiture ; and, in a word, it was decided, that, where 
 a forfeiture has accrued upon a clause of re-entry for rent in arrear, 
 the forfeiture will be waived if the landlord afterward do any act 
 which amounts to an acknowledgment of a subsisting tenancj' ; or 
 if he receive rent due at a subsequent quarter ; or distrain for 
 that in respect of which the forfeiture accrued. {Jackson v. Shel- 
 don, 5 Cow. E. 448.) ^ 
 
 It was argued by Cady,.one of the learned counsel for the land- 
 lord in the case in Cowen, that it was clear, upon authority, that 
 at common law the landlord might receive rent ; and, by parity 
 of reason, distrain the next day after he had made a demand and 
 technical entry ; and yet, that this should not work a waiver pf 
 his re-entry. But "Woodworth, J., who delivered the opinion of the 
 court, remarked : " When a forfeiture has accrued upon a clause 
 of re-entry for rent in arrear, the forfeiture will be waived, if the 
 landlord do any act after the forfeiture which amounts to an 
 acknowledgment of a subsisting tenancy ; as, if he receive rent 
 due at a subsequent quarter, or distrain for that in respect of 
 which the forfeiture accrued. In the case of a distress, the reason 
 is given by Lord Coke : ' If the lessor distrtins for the same rents 
 for which the demand was made, he hath thereby affirmed the 
 lease, for, after the lease determined, he cannot distrain for rent! 
 This seems to be the established common-law doctrine, and is 
 decisive as to the case before us. If the plaintiff here is entitled 
 to recover, it must be on the ground of forfeiture — that the rent 
 has not been paid according to the condition. If the tenancy still 
 exists, there can be no foundation for the action. In this case, 
 there was no sufficient distress, and more than six months' rent in 
 arrear. By the terms of the lease, it was voidable, at the election 
 of the plaintiff. He elected to distrain, which he could not do at 
 common law, if the lease was determined. This shows that he 
 intended to waive the forfeiture ; at least, so the law considers it. 
 After this, the remedy by re-entry, so far as respects the rents pre- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 277 
 
 viously accrued, could not be enforced." The learned judge then 
 reviews the authorities, and comes to the conclusion, that making 
 distress after forfeiture is a waiver of the forfeiture, even under the 
 English statute, aud insists that the case of Thayer v. Eaton and 
 the case of Ooodright v. Gordwent, referred to by Mr. Adams, so 
 far as they hold to a contrary doctrine, are opposed to the whole 
 culrent of authority on the subject. And it may be added, that 
 some of the points decided in the cases reported in 3 Douglas have 
 been expressly overruled by the English courts. 
 
 In a late case in the supreme court of the United States, Justice 
 Nelson, who delivered the opinion of the court, recognized the 
 general doctrine in such cases, and, after stating that the landlord 
 has the right to waive the forfeiture, said : " Receiving rent with 
 the knowledge of the breach is a waiver. So, levying a distress 
 for the rent, or in any other way consenting to a continuance of 
 the term." {Dermoti v. WallacJc, 1 "Wallace's E. 61, 65.) 
 
 The acceptance of rent by the landlord, accrued before forfeiture 
 of the lease, is not a waiver of his right to a forfeiture, nor will 
 acceptance of rent accrued after forfeiture, unless it appear that 
 the landlord knew of the act of forfeiture when he received the 
 rent ; acts of the lessor in ignorance of a forfeiture do not operate 
 as a waiver of it, because there is in such case no aflSrmance of the 
 tenancy, nor a recognition of the relation of landlord and tenant. 
 ( Vide Walker v. Engler, 30 Mo. R. 130.) But a covenant of a 
 lessee to build within a certain period is not a continuing covenant, 
 and a forfeiture for its breach is waived by acceptance of rent after 
 the period has elapsed. {MoGlynn v. Moore, 25 Cal. E. 384.) 
 
 CHAPTEE XIV. 
 
 THE ACTION OF EJECTMENT A8 BETWEEN LANDLORD AND TENANT 
 
 TERMINATION OF A TENANCY BY THE NON-PEEFOEMANCE OF COVE- 
 NANTS OE CONDITIONS, OTHEE THAN BY NON-PAYMENT OF EENT — 
 OP THE BEEACH OF THE COVENANTS IN SUCH CASES. 
 
 The proceedings in cases of forfeiture of a tenancy by the non- 
 payment of rent, and those by the non-performance of other cove- 
 nants and conditions, differ in many respects very materially; and 
 hence the two cases are treated in separate chapters. 
 
278 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 With respect to the construction of provisos for re-entry for 
 the non-performance of covenants and conditions, Lord Tenterden 
 says : " Provisos of this sort are not to be construed with the strict- 
 ness of conditions at common law. These are matters of contract, 
 and should, in my opinion, be construed as other contracts. The 
 parties agree to a tenancy on certain terms, and there is no hard- 
 ship in binding them to those terms. In my view of cases of this 
 sort the provisos ought to be construed according to fair and 
 obvious constructions, without favor to either side." It was 
 strenuously argued in the case that all conditions to defeat an 
 estate must be construed strictly ; and such certainly is the general 
 rule ; but Lord Tenterden laid down the rule in respect to cove- 
 nants in a lease, as above stated. {I)o& v. Elsam, 1 Moody & 
 Malkin's R. 189.) This rule, however, does not interfere with 
 the well-known maxim of law, that every doubtful grant shall be 
 construed in favor of the grantee, which is as applicable to these 
 provisos in leases as to any other grants. The rules to be applied 
 to these cases will be best understood by a brief reference to the 
 authorities upon the subject. 
 
 In a case decided by Bridgman, J., cited in Shephard's Touch- 
 stone, it is said : " If one make a lease for years of a manor, and 
 covenant that the lessee shall make estates for life or years, and 
 that they shall be good ; in this case it seems this covenant shall 
 not be taken to enable the lessee to make estates for a longer time 
 than his estate will bear." (Shep. Touch. 169.) When the 
 obligation was expressed thus : that whereas the defendant had 
 sold to the plaintiif. a lease for years of the manor of S., he would 
 not do, nor had done any act to disturb the plaintiff's possession 
 of it ; lut that the plaintiff should hold and enjoy this peaceably, 
 without the disturbance of the defendant, or any other person ; it 
 was held by all the justices that the defendant was not bound by 
 the words of the condition to warrant peaceable possession to the 
 vendor, but only against acts done by himself; and that all the 
 sequel of the condition which comes after the lut, shall be referred 
 to the antecedent part of the condition, and expounded and 
 extended in like manner ; that is to say, that he shall enjoy it with- 
 out disturbance of any person or persons by any act ly him done, 
 or to be done. {Boughton v. Conway, Moor's E. 58.) To be sure, 
 this is not a construction put upon the* covenants in a lease, and 
 yet this, case affords an illustration of many which may occur 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 279 
 
 Letween landlord and tenant. The old maxim that " the scope 
 and end of every matter is principally to be considered ; and if 
 the scope and end of the matter be satisfied, then is the matter 
 itself and the intent tliereof also accomplished," is as applicable 
 to leases as to other deeds. " The law being to judge of an act, 
 deed or bargain, consisting of divers parts, containing the will and 
 intent of the parties, all tending to one end, doth judge the whole, 
 and gives every part his office to make up that intent, and doth 
 not break the words in pieces." (Lord Hobart, Clanrtckard v. 
 Sidney, Hobart's E. 273, 275.) 
 
 It has been held by the court of king's bench, that covenants in 
 a building and repairing lease, to lease the demised premises with 
 all new erections, well repaired, extends to the new erections only. 
 {Lant V. Norris, 1 Burrows' R. 287.) This case may serve to aid 
 in the construction of leases in other cases that 'may arise between 
 landlord and tenant, and throw some light on the subject under 
 consideration. 
 
 The doctrine is thus stated in a case in the supreme court of 
 Pennsylvania : " The true rule for , the interpretation of cove- 
 nants is so to expound them as to give effect to the actual intent 
 of the parties, as collected from the whole instrument ; though 
 the result may be that words ^er se implying a personal obligation, 
 will be denied the effect of a covenant or a personal promise to 
 pay, without regard to the enjoyment of the property." {Shoen- 
 hurger v. ITay, 40 Penn. R. 132.) 
 
 In a late case decided by the supreme court of the United 
 States, when a lease at $3,000 a year was given a construction, 
 payable in monthly installments, and the lease stipulated that if 
 the tenant underlet or attempted to remove any of the goods 
 on the premises without the landlord's consent, then at the sole 
 option and election of the landlord, the term- should cease / and more- 
 over, in either of said cases, " one whole year's rent, to wit, the rent 
 of $3,000 over and above all such rents " as have already accrued, 
 shall and is liereby reserved, and shall immediately accrue and 
 become due and owing, and shall and maybe levied on by distress 
 and sale of all such goods as may be found on the premises; it 
 was held by the court that, although the clause in the lease was 
 obscure, the $3,000 was " rent," intended to be secured in advance 
 and in a gross sum instead of in the monthly, and was not a 
 penalty above and independent of the other and reserved rents. 
 
280 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Mr. Justice Nelson, who delivered the opinion of the court, said: 
 "These covenants are inserted in a lease for the better security 
 of the rent. The one in question simply makes the rent payable 
 in advance, instead of by installments, on the happening of the 
 event stated. It would have been not only strange, but unreason- 
 able to have made this stipulation, as contended for on the part of 
 the plaintiflF, to take eifect at the moment the term ceased, or 
 might be put an end to by the landlord. The words should be 
 very clear and controlling to lead to such an interpretation." In 
 this case the tenant had executed two deeds of trust of the goods 
 and chattels mentioned in the lease, whereupon it was claimed that 
 the $3,000 became due, although the lease had not more than a 
 year to run, and the court sustained this view. {Dermott v. Wal- 
 laoJc, 1 Wall. R. 61.) A lease contained the following proviso : 
 " If the said C." (the lessee) " shall, either by his own act or acts, 
 or by bankruptcy, insolvency, writ of extent, or of execution by 
 Jleri facias, or other act of law, or by any other means whereby, 
 either voluntarily or without or against his consent, whereunder 
 the said premises demised, or any part thereof, would, in case this 
 proviso did not exist, be liable to be seized by the sheriff or any 
 other person, or in case the said C. shall at. any time or times 
 hereafter make breach or default in the performance of the coven- 
 ants," etc., " then, and in any or either of the cases, this present 
 indenture, and the term hereby created shall thenceforth cease and 
 determine ; and it shall and may be lawful to and for the said C," 
 the lessor, to re-enter and expel the lessee. On ejectment, brought 
 upon forfeiture supposed to have accrued by execution of a fieri 
 facias issued against the lessee, the court held, that the proviso 
 was insensible, and nonsuited the plaintiff. Lord Denman, C. J., 
 Baying : " I am of opinion that the court is not bound to find out a 
 meaning for a proviso framed as this is," and Williams, Coleridge, 
 and Wightman, JJ., concurred. (Doe v. Gavin, 2 Adolph. & Ell. 
 E. K S. 31T. Same Case, 42, Eng. C. L. E. 692.) 
 
 In a late case decided by the supreme court of the state of I^Tew 
 York, the lease and counterpart contained provisions in regard to 
 letting or underletting which were substantially identical. In the 
 instrument signed by the lessee the phraseology was, the premises 
 shall not "be let or underlet without the written consent of the 
 landlord, under the penalty cf forfeiture and damages." In the 
 counterpart signed by the lessee, lie " engages not to let or under- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 281 
 
 let the -whole or any part of said premises without the written con- 
 sent of the landlord, under the penalty of forfeiture and damages." 
 It was contended by counsel that these words did not make a condi- 
 tion, the bi"each of which. would terminate the lease. The court 
 however construed the word " forfeiture," to mean forfeiture of the 
 term and estate. Emott, J., who delivered the opinion of the court, 
 after giving the construction as above, said : " There is no other 
 sensible meaning which can be attached to it, and, while courts 
 will construe strictly clauses which create conditions and go to 
 defeat estates, that does not mean that we have a right to disre- 
 gard the obvious intentions of j^arties, or the reasonable use of their 
 words, in such an instrument as this, although they may be iuarti- 
 ficially expressed." {Lynde v. Hugh, 27 Barb. E. 415, 420, 421.) 
 
 The rule of law has always been, that the same precise words of 
 condition are not required in leases for years as in conveyances of 
 freehold estates. (2 Co. Litt. 204, a.) 
 
 In a case in England involving the construction of the covenants 
 in a lease, in which the word " let " was coupled with " set " and 
 "assign over," the court construed the word "set" to mean 
 underlet, and it was declared that the whole covenant forbid an 
 underlease, as well as an assignment. {Roe v. Harrison, 2 Term 
 R. 425.) But in all cases of this kind, the extent and meaning of 
 the covenant or condition, and the fact of a breach, are questions 
 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. ( Vide Livingston v. Stickles, 8 Paige's 
 E. 398. Same Case in error, 7 Hill's R. 253. Jackson v. Silver- 
 nail, 15 Johns. R. 278. Jackson v. Harrison, 17 ib. 66.) 
 
 In an action for specific performance, in the English court of 
 chancery, the question was, whether the lessee of a public-house, 
 who had contracted to sell and assign his lease, could do so without 
 the consent of the lessor. The lease contained a condition, that 
 the lessee should not "let, set or demise" the premises without the 
 consent of the lessor. It was strongly insisted on the argument at 
 the rolls, that the word "set" included an assignment or convey- 
 ance of the whole term, and it seems that Sir William Grant, 
 Master of the Rolls, adopted that view, and decided the case in 
 accordance with that construction, holding that the words of the 
 covenant could not have distinct operation and effect without 
 reference to an assignment. {Greenway v. Adams, 12 Yes. R.''395.) 
 36 
 
282 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In all cases where an estate for years is granted on condition, 
 and tlie lease declares that the estate shall cease and determine on 
 the breach of the condition, without any clause of re-entry or othei 
 qualification, the estate will ipso facto cease, as soon as the condi- 
 tion is broken. But if the lease provides expressly that the land- 
 lord shall re-enter in case of a breach of the condition, then the 
 lease is not void, but voidable only at the election of the landlord. 
 ( Vide Pennants Case, 3 Coke's E. 64. Stuyvesant v. Davis, 9 
 Paige's E. 431. A7'nsby v. Woodward, 6 Barn. & Cres. E. 519. 
 Pavmelee v. The Oswego and Syracuse Railroad CoTwpany, 6 
 N. Y. E. 74.) 
 
 A lease contained the following clause : " And also shall be law- 
 ful for E. D." (the lessor), " her executors," etc., " to call on tenant 
 for quarterly payment of rent, or, if otherwise, as now accepted, at 
 Michaelmas and Lady-day, as a matter of favor, with a quarter 
 remaining in hand, and if not paid in twenty days after, rent as 
 stated, and lOZ. of included rent for breaking up land by acre, 
 then the tenant shall be liable to have the rent, etc., due, recovered 
 by sale and distress, or to enter on the premises for the same till 
 it be fully satisfied." On ejectment brought to recover the prem- 
 ises for alleged forfeiture, the court held (1) that the clause might 
 be understood as reserving a right of entry, upon non-payment of 
 rent, to hold the premises till the arrears are paid ; and (2) that, 
 under this clause, the lessor could not enter without the common- 
 law formalities; section 2 of statute 4 George II, chapter 28, apply- 
 ing only where there is a right of re-entry by which the lease is 
 avoided. Lord Dennian, C. J., in delivering the opinion of the 
 conrt, said : "■ The lease was very inartificially drawn ; but, giving 
 it a reasonable construction, it contained a condition that, upon 
 non-payment of the reserved rent, the lessor might enter and hold 
 the premises until the arrears were paid. The precise words are, 
 'to enter on the premises for the same till it be fully satisfied.' 
 Such a condition would have enabled the lessor to maintain eject- 
 ment at common law, fulfilling the requisite formalities; and he 
 would have been entitled to hold the premises until the arrears 
 were satisfied ; but, when they were satisfied, the lessee might 
 re-enter, and hold the premises under the lease as before. The 
 effect of such a condition in a lease as that in question is stated in 
 Coke on Littleton, 213, a." {Dow v. Bowditch, 8 Adolph. & Ell 
 R. K S. 973. Same Case, 55 Eng. C. L. K. 971.) 
 
EJECTMENT AS BETWEEN LANBLOBD AND TENANT. 283 
 
 In a lease containing a proviso for re-entry on breach of any of 
 the covenants, the lessee covenanted that he, his executors or 
 assigns, would insure the demised premises, and keep them insured 
 during the term, and deposit the policy with the lessor; the court 
 held, that the true construction of this covenant was not that the 
 lessee should effect one policy, and keep that policy on foot, but 
 that he, his executors, administrators or assigns, should always 
 keep the premises insured by some policy or another, and- that it 
 was a breach if they were uninsured at any one time, and a continu- 
 ing breach for any portion of the time they were uninsured. {Doe v. 
 Peak, 1 Barn. & Adolph. E. 428. Sa7ne Case, 20 Eng. C. L. E. 417.) 
 
 A stipulation in a lease, that, on notice, the lessee will sur- 
 render, and the lessor may enter on such parts of the premises as 
 he may desire, is held to allow the lessor to take the whole ; that 
 such a stipulation operates as a condition, and, on the requisite 
 notice being given, puts an end to the term. {Gardiner v. Ken- 
 nard, 12 Queen's B. E. 244. Same Case, 64 Eng. C. L. E. 243.) 
 
 A covenant in a lease binding the lessee to take down houses 
 within a certain term, and erect new ones, it is held, may be 
 complied witli by completely and substantially repairing, without 
 taking down. {Evelyn v. Raddish, 7 Taunt. E. 411. Same Case, 
 2 Eng. C. L. E. 423.) But under a covenant that the tenant 
 "would substantially repair, uphold and maintain" a house, the 
 court held, that the tenant was bound to keep up the inside paint- 
 ing. {Monk V. Nayes, 1 Carr. & Pa. E. 265. Same Case, 12 Eng. 
 C L. E. 169.) And it has been held, that a covenant to keep and 
 leave the house demised in repair is not satisfied by keeping the 
 building in substantial i-epair according to the nature of the tene- 
 ment. {Stanley v. Towgood, 3 Brooke's New Cases, 4. Same 
 Case, 32 Eng. C. L. E. 13.) So, also, it has beda held by the court 
 of appeals of the state of New York, that in the leasing of prem- 
 ises for a first-class hotel, a covenant to keep the same in repair, is 
 broken by permitting the flues to remain in such condition that 
 the rooms cannot be used with a fire, owing to the issuing of 
 smoke from the grate into the room, whenever a fire is lighted 
 therein. {Myers v. Burns, 35 N. T. E. 269.) 
 
 II. It is not always an easy matter to determine what is a 
 breach of the covenant of a lease so as to justify an ejectment by 
 the lessor. The question' will be best comprehended by a reference 
 to the leading cases upon the subject. 
 
284 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 It lias been held that a power of re-entry, if the tenant make 
 default in performance of an^ of the clauses in the lease by the 
 space of thirty days after notice, does not apply to a breach of a 
 covenant not to allow alterations in the premises, or permit new 
 buildings to be erected thereon without the permission of the land- 
 lord. {Polk V. Marchitti, 1 Barn. & Ad. K. 715. Sam^ Case, 20 
 Eng. C. L. E. C62.) And it seems to be a question of doubt, if 
 the attainder of the tenant upon conviction of felony is a forfeiture 
 of the lease, under a proviso tnat if the lessee, bis heirs, etc., 
 should, during the continuance of the term, happen to become 
 insolvent, and unable in circumstances to go on with the manage- 
 ment of the premises, the demise should cease, and be void. But 
 it was held, that if it was a breach of the condition, it was not a 
 continuing breach, but Avas contemporaneous with the conviction. 
 {Griffith V. Pritchard, 5 Barn. & Ad. K. 765. Same Case, 27 Eng. 
 C. L. E. 323.) It has been held that a tenant for a definite term of 
 years does not forfeit his term by orally refusing, upon demand 
 of rent made by the landlord to pay the rent, and claiming the 
 fee as his own. Of course, in such a case, if the rent was due and 
 had been in arrear the requisite time, the landlord could take 
 measures to terminate the estate; but such acts of the tenant 
 would not ipso facto forfeit the estate. {Graves v. Walls, 10 
 Ad. & Ell. E. 427. Sarne Case, 37 Eng. C. L. E. 129.) If a tenant 
 surrender the premises to a person claiming them adversely to the 
 landlord, it is a forfeiture of the estate by the lessee. But the acts 
 of the tenant in such a case must be unequivocal. {Acklandv. 
 ,S'M!;%,9Ad.&Ell.E.879. ^me Case, 36 Eng. C. L. E. 312.) When 
 a lease for life contained a covenant that the lessee should not sell 
 or assign without the permission of the lessor, and the lessee did 
 sell and assign a part of the premises with the consent of the lessor, 
 it was held that this did not amount to a surrender of the premises. 
 But in the same case it was decided, that, where wood is cut down 
 on leased premises, by the lessee or his assigns, in such manner as 
 materially to injure the inheritance, it is waste; and when the 
 lease contained a clause of re-entry for a breach of the covenants 
 and conditions in the lease, the lessee might maintain ejectment. 
 {Jackson v. Brownson, 7 Johns. E. 227.) In a case in England, 
 when the lessee covenanted not to demise, assign, transfer, or set 
 over, or otherwise do or put away the lease or premises, or any part 
 thereof, and afterward made an under-lease of the premises, it was 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 285 
 
 held not to be a breach of the covenant, for an under-lease is not 
 an assignment. (Crusoe y. Bugly, 3 Wils. E. 234.) And in the 
 state of New York, where a lessee for lives covenanted not to sell, 
 dispose of, or assign his estate in the demised premises, without the 
 permission of the lessor, and the lease contained a clause of forfeit- 
 ure for n on -performance of covenants, the court held, that a lease 
 of part of the premises by the lessee for twenty years, was not such 
 a breach of the covenant ; and further, that nothing short of an 
 assignment of his whole estate, by the lessee, would produce a for- 
 feiture of the lease. It was also decided, that a sale of the whole 
 premises under a judgment and execution against the lessee, would 
 not work a forfeiture of the estate,' unless there was some fraud or 
 collusion on the part of the lessee. (Jackson v. Silvemail, 15 
 Johns. E. 278.) 
 
 So, where a lease for the term of seven years contained a like 
 covenant, that the lessee " should not assign over, or otherwise 
 part with the indenture, or the premises thereby leased, or any 
 part thereof," and there was a clause of re-entry for a ,breacli of 
 covenants, the court held, that no forfeiture was incurred by an 
 underletting for two years. (Jackson v. Harrison, 17 Johns. R. 
 66.) But a covenant by a lessee, that if the lessor or his assigns 
 shall be minded to sell or dispose of his or their interest in the 
 demised premises, he or they may do so, first giving the pre-emption 
 to the lessee, and paying one-tenth of the purchase-money to him, 
 provide, that if these be not due, the lease shall be forfeited, was 
 held by the court to be valid ; and the court decided that on the 
 assignment of the lease by the lessor or his assignee, without offer- 
 ing the pre-emption and paying the tenth of the money to the 
 lessor, the lease was forfeited. (Jackson v. Groat, 7 Cow. R. 
 285.) So also, a covenant or condition in a lease that in case the 
 lessor should be minded to dispose of the premises, or any part 
 thereof, he should give to the lessee the right of pre-emption oi 
 refusal of buying, and would not sell, without his leave, under his 
 hand and seal first obtained ; and that on every such sale, with 
 such license he should pay to the lessee one-tenth of the purchase 
 money for which the premises were sold, with a clause that in case 
 of non-performance the estate demised should cease, and a clause 
 of re-entry for a breach of the covenants ; it was held, that the 
 estate would be forfeited on failure of the lessee to perform any or 
 either of the covenants, and that the lessor might bring ejectment 
 
286 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to recover the possession of the premises oji such forfeiture. {Jack- 
 son.v. Schutz, 18 Johns. K. 174.) But it seems that under a similar 
 lease the fact, that the lessee had contracted to sell his interest in 
 the demised premises, and to indemnify against the lessor's claim 
 for the tenth sale, and the vendee had paid the larger portion of 
 the consideration, and taken possession, is not a breach of the cove- 
 nant, for the reason that there is not, by such contract to sell, *ny 
 legal assignment of the lease, and hence the same was not forfeited. 
 {Livingston v. Stickles, 8 Paige's R. 398 ; S. C. 7 Hill's E. 253.) 
 "When the case of Livingston v. Stickles was in the court of 
 errors, as reported in Hill, Nelson, C. J., laid down the rule, that, 
 in general, a covenant or condition restraining the right of selling or 
 assigning leasehold property is not broken by any act of the lessee 
 which falls short of divesting his legal estate ; otherwise, however, 
 if it appear that the legal estate is continued in the lessee for the 
 mere purpose of evading the covenant or condition, the equitable 
 title having been transferred. The rule was further repeated that 
 covenants and conditions of this nature are to be construed strictly 
 as against the lessor. The courts are never disposed to favor the 
 doctrine of implication, and more especially when applied to those 
 cases where parties have entered into written contracts with express 
 conditions. The well settled rule is, that " where the parties have 
 entered into written engagements, with expressed stipulations, it 
 is manifestly not desirable to extend them by implication ; the 
 presumption is that having expressed some they have expressed all 
 the conditions by which they intend to be bound under that 
 instrument." Upon this principle the supreme court of the state 
 of Kansas held, where in a lease it was stipulated that if the lessors 
 failed to pay rent at a certain time, and taxes, or to refund those 
 taxes paid by tlie lessor, the lease should be forfeited ; and where 
 the lease contained afterward an independent agreement that the 
 lessee should not assign the lease without the written consent of 
 the lessor, with no penalty expressed, that a forfeiture of the lease 
 was not incurred by a breach of the last condition, namely, the 
 stipulation that the lessee should not assign the lease without the 
 written consent of the lessor, as no penalty was expressly provided 
 in case of a breach of this part of the lease, the penalty of forfeit- 
 ure could extend to it only by implication ; and therefore the 
 court held that there could have been no intention on the part of 
 the contracting parties to provide one ; but to leave the parties to 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 287 
 
 determine their rights in this respect under the law applicable to 
 such cases. {Burnes v. McCuhbin, 3 Kansas R. 221.) 
 
 In a leading case in England, where a lessee covenanted not to 
 " let, set, assign, transfer, set over, or otherwise part with the said 
 messuage ;" and the lease was deposited with a creditor as security 
 for a debt, who took possession of the premises, and continued in 
 the possession and occupation of the same at the time the eject- 
 ment was brought for a forfeiture ; the lessor insisting that the 
 transaction was within the words " otherwise part with" etc. But 
 the court was clearly of the opinion that the effect ot the covenant 
 was only to restrain the lessee from completely alienating the legal 
 interest to the prejudice of the landlord, without his consent, and 
 that there had been no alienation in that sense ; that the words 
 otherwise part with, meant " assign," and that there had been no 
 assignment of the legal estate. {Doe v. Hogg, 4 Dowling & 
 Eyland's E. 226.) 
 
 So it has been held that the devise of a term by the lessee, is 
 not a breach of the covenant against assigning. {Fox v. Swan, 
 Styles' E. 482.) And a covenant not to " alien, sell, assign, trans- 
 fer, and set over, or otherwise part with the lease of a public house, 
 was held, in England, not to be broken by depositing the lease with 
 the brokers, to cover advances by them. {Doe v. Bevan, 3 Maule 
 & Selwyn's E. 353.) 
 
 It has also been held, in England, that a covenant not to under- 
 let any part of the premises without license is not broken by taking 
 in lodgers; for, as declared by Lord Ellenborough, C. J., "the 
 covenant can only extend to such underletting as a license might 
 be expected to be applied for ; and," he asks, " who ever heard of 
 a licence given a landlord to take in a lodger? " {Doe v. Lanning, 
 4 Camp. E. 77.) 
 
 It has been held by the courts of England, that an assignment 
 by sale on execution is not a breach of the covenant not to assign, 
 even when the judgment is entered upon a warrant of attorney, 
 unless given for the express purpose of getting possession of the 
 term in fraud of the lessor. {Doe v. Garter, 8 Term E. 57, 300.) 
 And a similar doctrine has been recognized by the American 
 courts. In a case where a lessee reserved one-quarter of the 
 money arising from every letting, assigning or disposing of the 
 premises by the lessor, who covenanted, that whenever he should 
 incline, or be by law, or otherwise, obliged to sell, he would make 
 
288 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the first offer to the lessee, giving him notice of the price, etc. ; 
 and it was provided, that every sale, renting, etc., should be void, 
 and the premises revert to the lessor, unless the seller or purchaser 
 should pay the lessor the one-fourth of the money offered, etc. ; 
 and the tenant who held under the lease confessed a judgment, on 
 which an execution issued, and the lease was sold by the sheriff; 
 it was held, that this was no forfeiture, unless the judgment had 
 been confessed fraudulently, or for the purpose of enabling the 
 creditor to take the lease in execution under the judgment, and 
 with a view to defeat the lessor's reservation of one-fourth of the 
 money offered. {Jackson v. Corliss, 1 Johns. R. 531.) The courts 
 always distinguish between those acts which are done by the lessor 
 voluntarily and those which pass in invitum, and the latter are 
 held not to be a breach of the covenant. There is, in respect to 
 forced sales of these estates, no difference between a judgment 
 obtained in consequence of an action instituted, and a judgment 
 that is signed under a warrant of attorney, where there is no 
 fraudulent purpose, for the latter is merely to shorten the process, 
 and lessen the expense of the proceedings. ( Vide Doe v. Carter, 
 8 Term R. 57, 300.) It has also been held by the English courts, 
 that an assignment which is void is not a breach of such a cove- 
 nant, such an assignment being of itself an act of bankruptcy. 
 (Doe V. Powell, 5 Barn. & Ores. R. 308.) The party seeking to 
 take advantage of the breach of such a covenant, it is held, must 
 show an actual assignment. {Doe v. Payne, 1 Stark. R. 86.) 
 And Lord Eldon laid down the proposition, in one case, that the 
 tenant might, bj' an agreement which did not amount to an assign- 
 ment, put another person into possession of the demised premises. 
 {Church V. Brown, 15 Yes. R. 265.) 
 
 These authorities, as has been well said by an American judge, 
 sufiiciently exemplify the very great strictness with which cove- 
 nants and conditions tending to clog alienations and to tie up 
 leasehold estates in the hands of the lessees are construed, even in 
 that country where restraints upon the transmission of property 
 are much more favorably regarded than in the American states. 
 And they demonstrate, beyond all doubt, that, before a breach can 
 be predicated upon the words of a covenant not to sell or assign, 
 such a sale or assignment of the term must be shown as shall 
 operate to divest the vendee or assignor of the whole of his legal 
 interest or estate in the same. The words sale or assignment, 
 
EJECnrENT AS BETWEEN LANBLOUO AND TENANT. 289 
 
 technically speaking, metin the actual transfer of the legal interest 
 and estate ; not a mere equitable riglit to such transfer, which 
 might be enforced in a court of equity. So tlie words have been 
 construed by the courts of this country. {Vide Edviardsw The 
 Farmers^ Fire Insurance Company, 21 Wend. R. 467, 493-5.) 
 
 Where one leased for twenty-one years, if the tenant, his exe- 
 cutors, etc., should so long continue to inhabit and dwell in the 
 farm-house, and actually occupy the lands, etc., and not let, set, 
 assign over, or otherwise depart with the lease ; it was held, that 
 the tenant having become bankrupt, and his assignees having pos- 
 sessed themselves of the premises and sold the lease, and the bank- 
 rupt being out of the actual possession and occupation of the farm, 
 the lessor might maintain ejectment without a previous re-entry, 
 the continuance of the term itself being made to depend upon the 
 lessor's actual occupation. '{Doe v. Clarhe, 8 East's K. 185.) This 
 case was regarded not as the case of a forfeiture, and was, there- 
 fore, distinguished from some other cases where the bankruptcy 
 of the lessee has«been held not to be a forfeiture of the estate. 
 Here the term itself was made to continue and depend upon the 
 personal occupation of the lessee. It was likened to a case of a 
 lease of twenty-one years, if the lessee should so long live ; then^ 
 if he died before the twenty-one years run out, there would be 
 an end of the term. Here the lease in effect was for twenty-one 
 years, if the lessee should so long live in the house. Then, if he 
 had ceased to live there, from whatever cause, the condition on 
 which the term was made to determine had happened, and there 
 was an end of the tenant's interest in the premises. The distinction 
 is very apparent. 
 
 Where a lease contained a proviso for re-entry if the lessor, " his 
 executors or administrator, or either of them, should become bank- 
 rupt," and the executor became bankrupt, it was held that the 
 proviso attached ; Parke, B., observing, " that where words are so 
 clear parties must be bound by their own express stipulations, 
 however absurd." {Doe v. Davifi, 6 Carr. & Pa. E. 614.) 
 
 Where the proviso of the lease was that the estate should cease 
 and from thenceforth become absolutely void if the lessee should, 
 during the continuance of the term, "happen to become insolvent, 
 and unable in- circumstances to go on with the management of tho 
 ferra ; " a doubt was expressed as to whether such proviso attached 
 on the attaintment of the lessee of felony. It was held, at all 
 SI 
 
290 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 events, not to be a continuing breacli, and attached, if at all, npon 
 the conviction, and might be removed by a subsequent payment 
 and acceptance of rent. {Doe v. Evans, 5 Barn. & Adolph. R. 765.) 
 
 Where a lease was given for land, with this exception : " Except 
 and always reserved out of these presents and the demise and lease 
 hereby made, all trees of oak, ash, and elm, now growing or here- 
 after to grow in or upon the said demised premises, or any part 
 thereof." The lease also contained a proviso, tliat if the defend- 
 ant should commit any waste in or upon the said demised premises 
 it should be lawful for the lessor to re-enter. The defendant cut 
 down timber trees of the description mentioned in the exception ; 
 but the court lield that waste was not committed by cntting the 
 trees down ; and therefore that ejectment could not be brought as 
 for loaste committed in or upon tlie demised premises. The ground 
 stated for the decision of the court' was, that the trees being 
 excepted out of the demise, no waste could be committed of them, 
 and consequently no forfeiture could be incurred by cutting them 
 down, within the provision of the lease ; tliat thg cutting down of 
 an adjoining wood, on which the demised close was described as 
 abutting, might as well be contended to be waste. {Goodnght v. 
 Vivian, 8 East's E. 190.) 
 
 But if the lessor cut down timber in such a manner as to injure 
 the inheritance, it is waste; and if the lease contain a clause of 
 re-entry for a breach of the covenants and conditions in such lease, 
 the lessor may maintain ejectment for the recover^' of the premi- 
 ses. {Jackson v. Brownson, 7 Johns. R. 227.) And beyond any 
 question, volimtary waste by the lessee is a determination of the 
 tenancy. {Phillips v. Covert, 7 Johns. E. 1.) 
 
 The autliorities are not entirely uniform as to what will con- 
 Btitute waste so as to work a forfeiture of the estate. Mucli depends 
 upon the custom and situation of the country, and the circum- 
 stances of the case. What will be regarded as waste in one place 
 and under a certain state of things, may not be so regarded in 
 another place and under a different state of things. 
 
 If the tenant improperly cut timber on the premises, his interest 
 in the land is thereby determined, and the landlord may have his 
 action to recover the premises. {Schermerhom v. Buell, 4 Denio's 
 E. 422.) But if a farm consisting mainly of wood land, be leased 
 for agricultural purposes, the lessee has the right to fell the timber 
 to fit the land for cultivation, leaving a sufficient quantity for 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 291 
 
 all the purposes of tlie farm, and the property of the timber 
 cut is in the lessee. But if he cut trees on the demised premises 
 for sale, and not for the purposes of preparing the land for 
 cultivation, it 'is waste, and the tenancy is thereby forfeited. 
 {Kidd V. Dennison, 6 Barb. E. 9.) 
 
 The felling, by a tenant, of any timber trees which by the cus- 
 tom of the country are considered as timber, and which are used 
 for the erection or reparation of buildings, is waste. So the 
 changing the course of husbandry, as converting meadow land 
 into arable, or e converse, is waste. So, if the tenant materially 
 changes the nature and character of the buildings, it is waste, 
 although the value of the property should be enhanced by the 
 alteration. The court say, in one case, that a tenant cannot, 
 under the pretense of advantage to the reversioners, change the 
 nature of buildings, and many cases show that such changes, 
 though beneficial, would be waste. The tenant has no authority 
 to assume the right of judging what may be an improvement to 
 the inheritance. He must confine himself to the conditions of the 
 lease. {Jackson v. Andrews', 18 Johns. E. 433.) And, in another 
 case, the chancellor says, th» tenant has no right "to make im- 
 provements or alterations which will materially and permanently 
 change the nature of the property, so as to render it impossible 
 for him to restore the same premises, substantially, at the expira- 
 tion of the term," ( Winchip v. Ftits, 3 Paige's E. 259, 262.) 
 
 The doctrine is stated, in Bacon's Abridgment, as follows : " It 
 has been held, that a lessee or tenant cannot change the nature of 
 the thing demised ; though in some cases the alteration may be for 
 the greater profit of the lessor. Thus, if a lessee convert a corn 
 mill into a fulling mill, it is waste, although the conversion be 
 for the lessor's advantage." (Bae. Abr. tit. Waste C. 4. Vide also 
 London v. Creyme, Cro. Jac. 182. Cole v. Green, 1 Levinz's E. 
 309.) So converting a meadow into an orchard is waste, by the 
 same authorities, although it increases the profit of the occupier. 
 
 In a well-considered case, in the late court of errors of the state 
 of New York, it was held to be waste for a tenant to cut down 
 and use wood grovring on the demised premises to burn iricic for 
 sale, where he has" covenanted not to cut down, destroy, or carry 
 away any more wood or timber than should be actually used and 
 employed on the farm, and' that he would not make any manner 
 of waste, sale or destruction of the wood or timber. The president 
 
292 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of the senate, who gave the opinion of the court, after declaring 
 that the term waste is, in law, a technical term, but, that under 
 the adjudications of the courts, has acquired a precise and definite 
 meaning, proceeds to say : " If it were really advantageous and 
 desirable to reduce this woodland into cultivation, it being done 
 by the tenant without the consent of the landlord, would injure 
 the latter in just so far as the value of the timber exceeded the 
 expense of cutting it down and clearing the land. But injury is 
 not, as has been said in this case, the test of waste ; but disherison, 
 of him in remainder or reversion. The tenant in this case has 
 destroyed timber which he cannot reproduce; and has carried off 
 the demised premises soil which he cannot restore. This is dis- 
 herison. The estate in remainder or reversion is wasted. Whether 
 the injury, resulting from that waste, be much or little, it is in 
 either case still waste." {Livingston v. Reynolds, 26 Wend. E. 
 115, 122.) 
 
 Even if a tenant cuts down trees for the purpose of repairing 
 the buildings on the demised premises, he is guilty of waste if he 
 afterward sells the trees, althougli subsequent to the sale he pur- 
 chases back the trees, and employs^hem in the reparation of the 
 buildings. It is the vendition which makes the cutting waste. 
 So aitenant cannot sell trees, and with the money received on the 
 sale cause the buildings to be repaired. (Coke Litt. 53, &.) 
 
 The authorities seem to indicate that if waste be committed in 
 a dwelliijg-house, part of the property demised, only such parts 
 of the dwelling-house are forfeited as the waste is committed in. 
 {Vide Jackson v. Tibbitts, 3 Wend. E. 341.) Sheppard says: 
 " That ;the plaintiff in this suit (action of waste), if he recover, 
 shall recover treble damages and the place wasted ; that is, if it 
 be' the whole house, the whole house ; if it be one or two rooms 
 «p«wm,, those rooms; if it be in a close, so much of the close as 
 is wasted." (Faithful Counsellor, 553.) Lord Coke says : " If 
 waste be done in houses, so many rooms shall be recovered wherein 
 there is waste done; but if waste be done sparsim throughout, all 
 shall be recovered." (Coke Litt. 54, a.) 
 
 But perhaps it is unnecessary to dwell longer on this particular 
 branch of the subject. Suffice it to say, that voluntary waste 
 always determines the tenancy; and it seems quite well in this 
 connection to understand what constitutes waste, so as to justify a 
 re-entry by the lessor. 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 293 
 
 If it be covenanted in a lease, "' that in case the lessor should 
 suffer or permit more than one person to every hundred acres to 
 reside on, use or occupy any part of the premises, the lease should 
 be void," and the lessee lets part of the premises for a year, to 
 persons to cultivate for shares, in the proportion of more than one 
 to each hundred acres, it is a breach of the covenant and defeats 
 the lease. {Jaelcson v. Brouinell, 1 Johns. R. 267. Jackson v. 
 Bich, 7 ib. 19i.) But where the quantity of land demised was 
 one hundred and thirty-five acres, and the lease contained a like 
 covenant, it is held not to be a breach for the lessee to. permit 
 another tenant to occupy the premises besides himself. {Jackson 
 v. Agan, 1 Johns. R. 273.) 
 
 When' the lessee covenants to keep the demised premises in 
 repair and leave them in good condition at the expiration of the 
 terrn, with the clause allowing the lessor to re-enter in case of a 
 breach of the covenants in the lease, and the tenant fails at any 
 time to keep the premises in such repair as is contemplated by the 
 lease, the landlord may recover the premises at once on the hap- 
 pening of the breach. ( Vide Schieffelien v. Carpenter, 15 Wend. 
 K. 400.; Luxmore v. Eohson, 1 Barn. & Aid. R. 584.) 
 
 A covenant in a lease, " not to permit any trade or business 
 whatsoever," to be exercised upon the demised premises, is broken 
 by an assignment to a schoolmaster, who kept his school upon the 
 premises. {Doe v. Kuling, 1 Maule & Sel. R. 95.) And a covenant 
 that the lessee shall not exercise the trade of a butcher upon the 
 premises, is broken by selling there raw meat by retail, although 
 no beasts were slaughtered there. {Doe v. Spry, 1 Barn. & Adolph. 
 R. 617.) So also, it seems, a covenant not "to use premises for 
 the sale of pork," -would be broken by exposing carcasses of swine 
 on the premises, and making bargains there for sale, although the 
 carcasses be taken to another place to be cut up, and the bills for 
 the meat supplied be made out as from the premises where the 
 cascasses were cut up. {Coe v. Elsam, 1 Mood. & Malk. R. 189.) 
 But a proviso for re-entry if the lessee shall permit any person to 
 inhabit the premises who should carry on certain specified trades 
 (that if a licensed victueller not bfeing one), or any other husihess 
 thai might he, or grow, or lead to he offensive, or any annoyance or 
 disturbance to any of the lessees tenants, is held not to be broken 
 by the opening of a public house. {Jones v. Thorn, 1 Barn. «fe 
 Gres. R. 715.) r 
 
294: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 "Where a lease contained a covenant " to insure and keep insured 
 a given snm of money upon the premises during the term, in some 
 sufficient insurance office," the lessee having insured the proper 
 sum, hut omitted to pay the annual premium within the time 
 allowed hy the office for payment; this was held by the court to 
 be a forfeiture of the lease under a clause of re-entry, altliough he 
 paid the premium within fourteen days after such time, and no 
 action liad been commenced, and no accident had happened by 
 fire to the premises in the mean time. {Doe v. Sherwin, 3 Camp. 
 E. 13i; Doe v. Peclt, 1 Barn. & Adolph. E. 428; vide Rolfe v. 
 Harris, 2 Price's E. 206 ; Eeynolds v. Pitt, lb. 212 ; Beaudnp 
 V. BucMy, lb. 200.) 
 
 A covenant in a lease to deliver up, at the end of the term, all 
 tlie trees standing in an orchard at the time of the demise, " reason- 
 able use and wear only excepted, is not broken by removing trees 
 decayed and past bearing, from a part of the orchard which was 
 too crowded. {Doe v. Crouch, 2 Camp. E. 449.) But a covenant 
 not to remove or grub np trees, is held to be broken by removing 
 trees from one part of the demised premises to another ; and also 
 by taking away trees, although the lessor plant a greater quantity 
 than he takes away. {Doe v. Bird, 6 Carr. & Pa. E. 695.) 
 
 A lease with a clause of re-entry for non-performance of ooven- 
 ants, contained a general covenant on the part of the lessee, to 
 keep the premises in repair, and also another independent covenant • 
 to repair, within three months after notice; the landlord after 
 serving the tenant with a notice to r&'^&ir forthwith, was allowed 
 to bring an ejectment within tlie three months for a breach of the 
 general covenant to repair. {Roe v. Paine, 2 Camp. E. 520.) 
 But where, on similar covenants, and with a similar clause of re- 
 entry, the landlord gave a notice to repair within the three calen- 
 dar months from the date of the notice, it was held that he had, 
 by such notice, precluded himself from insisting on the forfeiture 
 until the expiration of the three months. {Doe v. Meux, 4 Barn. 
 «fe Cres. E. 606 ; vide Doe v. Brindley, 4 Barn. & Adolph. 
 E. 34.) 
 
 A proviso giving power of re-entry, if the lessee " shall do or 
 cause to be done any act, matter, or tiling contrary to, and in 
 breach of any of the covenants," is held not to apply to a breach 
 of covenant to repair, the omission to repair not being an act done 
 within the meaning of the proviso. {Doe v. Stevens, 3 Barn. & 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 295 
 
 Adolph. E. 299.) And it is held that a proviso giving power of 
 re-entry if the tenant make default in performance of any of the 
 clauses, by the "space of thirty days afUr notice, does not apply to 
 the breach of a covenant not to allow alterations in the premises, 
 or permit new buildings to be made upon them without permis- 
 sion, and no forfeiture is incurred by the erection of a portico con- 
 trary to such covenant, and a neglect to remove it after notice. 
 {Doe v. Marchetti, 1 Barn. & Adolph. E. 715.) 
 
 The breaking of a doorway through tlie wall of a demised house 
 into an adjoining house, and keeping it open for a long space of 
 time, has been held to amount to a breach of covenant to repair. 
 (J)o6 v. Jackson, 2 Stark. E. 293.) So also pulling down a brick 
 wall dividing two court yards, has been held a breach of covenant 
 " to repair and maintain the brick walls," etc. {J)oe v. Bird, 
 6 Oarr. & Pa. 195.) But when the covenant was " to repair and 
 keep in repair the premises, and also such luildings, improve- 
 ments and additions as should he m,ade thereon In/ the lessee," it 
 was held that no forfeiture was incurred by changing the house 
 into shop windows, stopping up a doorway, and making a new 
 one in a different place ; the covenant being only agamst non- 
 repair, and it being implied by the terms of the lease, that addi- 
 tions or improvements were to be made. {Doe v. Jones, 4 Barn. 
 & Adolph. E. 126.) Where a lease contained a general covenant 
 to repair, and a further covenant that if the lessee did not repair 
 after notice, the lessor might enter and do the repairs himself, with 
 right of distress for the amount of such repairs ; and the lease also 
 contained a proviso for re-entry npon breach of any covenant, and 
 the lessor gave the lessee notice to repair the premises within the 
 pei'iod given by the lease, and that if he, the lessee, did not repair 
 within such period, he, the lessor, would perform the repairs, and 
 charge the lessee with the expense, and. the premises were not, in 
 fact, repaired by either party; it was held, that the lessor, having 
 elected to perform the repairs, and charge the lessee with the 
 expense, could not proceed to recover the premises as on a for- 
 feiture. {Doe V. Lewis, 5 Adolp. & Ell. E. 277.) 
 
 A covenant for a landlord to be allowed to come into a house 
 to see the state of repair at " convenient time," is held not to be 
 broken by his not being allowed to go into some of the rooms, if 
 the tenant had no previous notice of liis coming. {Doe v. Bird, 
 siipra.) 
 
296 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 If the possession of the demised premises be severed by assign- 
 ment, and the parties occupy in severalty, and each pays a portion 
 of the rent, which is credited on the lease generally, if either 
 commits an act forfeiting the estate hy the terms of the lease, the 
 ■whole premises are forfeited. {Clarke v. Cummings, 5 Baa-b. 
 E. 339.) 
 
 The principle governing these cases of forfeiture by reason of 
 breach of covenants, is the same whether the tenancy be created 
 by deed, or the tenant holds under an agreement for a lease, which 
 specifies the covenants to be inserted in the lease, and that there 
 shall be a power of re-entry, for a breach of them. {Doe v. Seach, 
 6 Esp. E. 100. Vide also Doe v. Watt, 8 Barn. & Cres. E. 308. 
 Doe V. Phillips, 2 Bing. E. 13.) 
 
 CHAPTEE XV. 
 
 THE ACn$N OF EJECTMENT AS BETWEEN LANDLOED AND TENANT WHO 
 
 MAY TAKE ADVANTAGE BY FOEFEITUEE OF THE BEEACH OF COVE- 
 NANTS OK CONDITIONS — OF FOEFEITUEE GENEEALLY — OF THE WAIVEB 
 OF THE FOEFEITUEE — OF THE SUEEENDEE OF A TENAl^CY. 
 
 A KEVEESioNEE may take advantage of a forfeiture, but to enable 
 him to do so, it is necessary that he should have the same estate 
 in the lands at the time of the breach, as he had when the condi- 
 tion was created; an extinguishment of the estate in reversion, in 
 respect of which the condition was made, extinguishing the condi- 
 tion also. {Duvvpor's Case, 4 Coke's E. 120, J.) For example, 
 where a lease was made for a hundred years, and the lessee made an 
 under lease for twenty years, rendering rent, with a clause of re- 
 entry, and afterward the original lessor ganted the reversion in fee, 
 and the grantee purchased the reversion of the term, it was held, 
 that the grantee should not have either the rent or the power of 
 re-entry, for the reversion of the term to which they were incident 
 was extinguished in the reversion in fee. {Threr v. Barton, Moor's 
 E. 9i. Well V. Russell, 3 Term E. 393, 402 ) So also, it is held 
 that the reversioner must be entitled to the reversion at the time 
 the forfeiture is committed, op he cannot take advantage of it. As 
 an illustration, a forfeiture by tenant for years in levying a fine, 
 
JUJECTMENTAS BETWEEN LANDLORD AND TENANT. 297 
 
 not having been taken advantage of by the entry of the then 
 revei*sioner to avoid the lease, it is held cannot be taken advantage 
 of after the reversion has been conveyed away, to recover the estate 
 in ejectment from the tenant, upon the several demises of the 
 grantor and grantee of such reversion. {Fenn v. Smart, 12 East's 
 E. 444.) Littleton says, that no entry, nor re-entry, which is tlie 
 same thing, may be reserved or given to any person, but only to 
 the donor or Isssor, or to their heirs ; and sucli re-entry cannot be 
 given to any other person ; and then he puts the case, if one let to 
 another for life by indenture reserving rent, and for default of pay- 
 ment a re-entry, etc., if the rent be behind, the grantee of the 
 reversion may distrain, for it, but may not enter and oust the ten- 
 ant, as the lessor or his heirs might have done if the reversion had 
 continued in them, " and in this case the entry is taken away for- 
 ever ^ for the grantor of the reversion cannot enter, causa qua 
 supra ; and the lessor or his heirs cannot enter, for if the lessor 
 might enter, then he ought to be in his former state, etc. ; and this 
 may not be, because he hath aliened from him the reversion." 
 (Litt. § 347. Coke Litt. 214, 5.) T^he distinction taken as to 
 estates, avoided upon condition broken without entry, refers to con- 
 ditions in deed, where, by the express terms of the deed, the estate 
 is declared to cease and be void on breach of the condition. But 
 there is also a breach of condition in law, which the party may or 
 may not take advantage of; and if he do not, the estate continues 
 in law, and the grantor cannot afterward enter for the forfeiture. 
 •None of the cases of entry for forfeiture distinguish between terms 
 for years or for life. Every one, Lord Coke says, shall take advant- 
 age of the condition in law broken in his own time. (Coke's Litt. 
 215, a.) And another authority states that " entry for a forfeiture 
 ought to be by him who is next in revei'sion or remainder after the 
 forfeited estate, as if a tenant for .life, or years, commit a for- 
 feiture he who has the immediate reversion or remainder ought 
 to enter. But he in the next remainder or reversion shall not 
 enter for the forfeiture, if his estate do not continue." (3 Com. 
 Dig. Forfeiture, A. 6 & 7, citing. 1 Eol. 857, I. 45, 50, 858, I. 5. 
 Vide also Johns v. Whiteley, 3 Wils. E;. 127, 140. Lady Monta- 
 gue's Case, Cro. Jac. 301. , Boe v. Sillier, 3 Terni E. 162. Gcod- 
 right v. Forrester, 8 East's E. 552. Vyvyan v. Arthur, 1 Barn. & 
 Ores. E. 410.) As analogous to the subject, reference may be 
 made to the case of a copyholder, of which Coke says : " Eegalarly 
 38 
 
298 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 it is true, that none can take benefit of a forfeiture but he that is 
 lord of the manor at the time of the forfeiture ; and, therfefore, if a 
 copyholder maketh a feoffment, and then the lord alieneth, neither 
 the grantor nor the grantee can take benefit of this forfeiture ; for 
 neither a right of entry nor a right of action can ever be trans- 
 ferred from one to another. And, therefore, if a freeholder alien- 
 ate in mortmain, and then the lord granteth away his seigniory, 
 neither the one nor the other can ever take benefit of this for- 
 feiture." (Coke Cop. § 60.) 
 
 From these authorities there can be no doubt but that, at the 
 common law, the grantor of a reversion could not enter or bring 
 ejectment for breach of the covenants of a lease, and this doctrine 
 is universally conceded. But tlie common law rule has been modi- 
 lied somewhat by statute in England, and in many, if not all of 
 the American states. Upon tliis subject Mr. Washburn says : " As 
 tlie law stood before the 32 Henry VIII, no one could avail him- 
 self of the benefit of a condition to defeat an estate by entry, 
 except the lessor or his heirs, because such right was not assignable 
 at common law more than any other chose in action. The con- 
 sequence was if a lessor conveyed his reversion, altliough the 
 estate would pass, and the assignee might recover rent from the 
 tenant in an action of debt, no covenant, as such, passed to the 
 grantor or assignee of such reversion. And though for a breach of 
 such covenant the assignor might hs,ve sued in the name of the 
 covenantor, the lessor, yet as the lessor had parted with all his 
 estate, he could not enter and defeat the estate of the lessee for a 
 breach of the conditions. The effect of this was, that when the 
 crown, in the time of Henry VIII, undertook to convey the lands 
 of the dissolved monasteries, the grantors found themselves unable 
 to enforce the covenants and conditions under which the tenants 
 held these lands. And to provide a remedy for the crown, and 
 partly for tlie people at large, a statute was passed, by which omit- 
 ting the provisions as to the crown lands, grantees or assignees to 
 or by any person, or their heirs, executors, administrators and 
 assigns, shojjild have like advantages against the lessees, their 
 executors, administrators and assigns, by entry for non-payment of 
 the rent, or for doing of waste or other forfeiture, and by action 
 only for not preferring other conditions, covenants or agreements 
 expressed in the indentures of leases, etc., against the said 
 lessors, etc., their executors, administrators and assigns, as the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 299 
 
 said lessors and grantors, their heirs or successors, might have had ; 
 and a corresponding authority is given to lessors and their assigns 
 to enforce covenants in their favor. * * * But a covenant or 
 condition already broken, cannot be assigned so as to be taten 
 advantage of or enforced by an assignee in his own name. 
 
 As the lavf now stands, therefore, not only the payment of rent, 
 but the performance of any other covenant running with the 
 estate, may be provided for by a condition for re-entry and forfeit- 
 ure, by which the lessor, or his heirs and assigns, may enter and 
 repossess the premises, as if no lease had been made." (1 Washb. 
 on Eeal Prop. 417, 418. And vide Burden v. Thayer, 3 Mete. 
 R. 76. Trash V. IFAee^cr, 7 Allen's E. 111. Crane v. Bather, 
 28 Eng. Law & Eq. R. 137.) Mr. Washburne further observes : 
 " The effect of such an entry by a lessor or his assigns, where he 
 may lawfully make it for breach of some condition, as the perform- 
 ance of a covenant in a lease, is, as already stated, to determine 
 the estate of the tenant altogether, and wholly revest the same in 
 the lessor or his assigns." (1 "Washb. on Real Prop. 419, referring 
 to MacuUn V. Whitoroft, 4 Har. & McHen. R. 135.) 
 
 The statute of 32 Henry YIII, referred to, giving the right of 
 entry and of action to the grantor of a i-eversion, is confined to 
 leases under seal. The statute speaks of conditions, covenants 
 and agreements, contained in indentures of leases, demises and 
 grants ; language only applicable to sealed instruments. Indeed, 
 this construction has been actually given to the statute by the 
 courts, both in England and with us. In a leading case in Eng- 
 land, Judges Wilde, Coltman, Maule and Cresswell severally gave 
 opinions, each one of them assuming it to be settled law, that, to 
 bring a case within this statute, the lease must ie hy deed ; 
 Maule, J., saying : " Tlie demise not being by deed, the right to 
 sue is not transferred to the assignor of the reversion by force of 
 the statute." (Bickford v. Parson, 5 Manning, Granger & Scott's 
 R. 920.) The same construction has been put upon the same 
 statute by the supreme court of the United States. {Sheets v. 
 Selden's lessee, 2 Wall. R. 177.) 
 
 Wherever the common law prevails, conditions in a deed can 
 only be reserved for the grantor and his heirs. A stranger cannot 
 take advantage of the. breach of them. And the reason for this 
 well-settled rule of the common law is, that the estate is not 
 defeated although the condition be broken, until entry by the 
 
300 iiAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 grantor or his heirs, and "nothing which lies in action, entry or 
 re-entry can be granted over, in order to discourage maintenances." 
 (1 Greenl. Cruise on Real Property, tit. 13, ch. 1, § 15.) Before 
 the breach there is nothing in the grantor to assign ; and the right 
 of entry, after breach, is at common law incapable of assignment. 
 ( Vide Nicoll v. New York and Erie Railroad Company, 12 Barb. 
 E. 460. Welch v. SilUman, 2 Hill's E. 491.) 
 
 But, at the common law, the lessor himself can avail himself of 
 the right of re-entry on breach of covenants or conditions, in case 
 ho retains his interest in the estate. And it is equally well-settled 
 that the heirs of the lessor have the same right ; and this, too, 
 although such heirs are not expressly named in the lease. That 
 is to say, when the lessor has a right of re-entry for condition 
 broken, his heir, although not expressly named, may avail himself 
 of the covenant after the decease of the ancestor. There can be 
 no doubt of this doctrine upon authority. [Jackson y. Topping, 
 1 Wend. E. 388.) By the common law, however, this right was 
 limited to the lessor and his heirs. But, as has been before stated, 
 b}'' the statute 32 Henry YIII, chapter 34, the assignee of the 
 lessor stands, in England, in the same plight in relation to tlie 
 tenant that the lessor did before he parted with the reversion ; 
 and this statute has been re-enacted in many of the American 
 states ; and wherever that statute or a similar one is in force, 
 the lessor, his heirs or assigns may respectively take advantage 
 by forfeiture of the breach of the covenant or condition of the 
 lease. 
 
 The provision of the statute of Ifew York is : " The grantor 
 of any demised lands, tenements, rents or other hereditaments, or 
 of the reversion thereof, the assignees of the lessor of any demise, 
 and the heirs and personal representatives of the lessor, grantor or 
 assignor, shall have the same remedies by entry, action, distress or 
 otherwise, for the non-performance of any agreement contained in 
 the lease so assigned, or for the recovery of any rent, or for the 
 doing of any waste or other cause of forfeiture, as their grantor 
 or lessor had, or might have had, if such reversion had remained 
 in such lessor or grantor. (1 Stat, at Large, 690, § 23.) The 
 provisions of this statute are very plain, and need no construction 
 to be well understood. The lessor himself, or any person succeed- 
 ing to his estate in the/demised premises, may avail himself of the 
 forfeiture of the tenancy of the premises demised. The provision of 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 301 
 
 the statute, by force of another section of the statute, extends as 
 well to grants or leases in fee reserving rents as to leases for life 
 or for years. (1 Stat, at Large, 690, § 25. And vide Van Rens- 
 selaer V. Hays, 19 N. Y. E. 68.) Thus it appears, that the grantors 
 of demised lands, and the grantors of rents, and the grantors of the 
 reversion of demised lands in the state of New York, are to have 
 the same remedies which the grantors or lessors would have been 
 entitled to if no change in their title had taken place, and that 
 grants in fee, with a reservation of rent, are to be considered as 
 within the provision. 
 
 But there are other matters connected with this subject which 
 it is necessary to note. It has been before intimated that 'the 
 breach of the covenant in a lease giving'a right of re-entry makes 
 the lease voidable only by the lessor, his heirs or assigns, until a 
 re-entry is made upon the demised premises, or the lease is avoided 
 by an ejectment. The estate remains in the lessee or his assigns, 
 in the same manner as before, since the breach of the covenant 
 does not of itself operate like a conditional limitation to determine 
 the estate. {Norman v. Wells, 17 Wend. R. 136. ClarTi v. Jones, 
 1 Denio's R. 515. Fifty Associates v. Rowland, 11 Mete. R. 99. 
 Elliot V. Stone, 1 Gray's E. 571. Garner v. Hannah, 6 Dner's 
 R. 262. Western Bank v. Kyle, 6 Gill's R. 343. Proctor v. Keith, 
 12 B. Mon. R.' 252. Doe v. Birch, 1 Mees. & Wels. R. 402. And 
 vide Fremont v. United States, 17 How. U. S. R. 542. United 
 States V. Beading, 18 ib. 1.) But where a condition is annexed 
 to an estate for years, the estate ceases upon breach, without an 
 entry ; and in that case, of course, the lessor, or any one succeed- 
 ing to the estate, may have ejectment to recover possession. The 
 only exception to this rule is where the lease provides expressly 
 that the landlord shall re-enter. {Parmelee v. The Oswego and 
 Syracuse Bailroad Company, 7 Barb. R. -599. Same Case, 6 
 ]Sr. T. R. 74.) 
 
 An estate becomes forfeited for the n on -performance of a con- 
 dition subsequent by a lessee, though the lessee be an infant, or 
 feme covert. In other words an estate liable to be defeated by 
 the non-performance of a condition subsequent, will be forfeited 
 for the want of performance of the condition, though the party by 
 whom it ought to be performed was under the disability of infancy 
 or coverture. Laches arechargeable upon the grantee of an estate, 
 subject to a condition for non-performance of the condition, even 
 
302 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 though such grantee, or his assignee, be an infant or feme covert. 
 (Coke on Litt. 246, h. Garrett v. Scouten, 3 Denio's E. 334.) 
 
 A proviso in a lease to re-enter for a condition broken, can 
 only operate during the term, and vanishes when that ends. 
 {Johns V. Whitley, 3 Wils. E. 127.) 
 
 Provisos for re-entry are construed strictly with respect to the 
 parties who may take advantage of them, and only include the 
 persons who are expressly named. For example, a power for a 
 specified person to enter, is held not to extend to his executor. 
 And it seems also, that if a lessee covenant with his lessor that he 
 will not assign, etc., a covenant so framed will not extend to 
 his "executors or administrators, although if the executors or admin- 
 istrators be mentioned in the clause, they will be bound by it. 
 {TIassel v. Oowthwaite, Willes' E. 500. !Doe v. Smith, 1 Mars. 
 E. 359.) 
 
 Where there is a statute, however, giving the right of re-entry 
 to the heirs and assigns of the lessor, the mere omission to name 
 them in the proviso, would not defeat this right ; parties are 
 always suiFered to make their contracts with reference to the public 
 laws of the state, and yet the parties may, in all cases limit the 
 benefit of covenants in a lease to the precise persons named in it. 
 
 "Where a power of re-entry for breach of covenants is reserved, 
 and a lease and the possession descends to co-parceners at common 
 law, it seems that one alone cannot maintain ejectment for breach 
 of the covenant. It requires the concurrence of all the parties 
 interested in the reversion to take advantage of the forfeiture. {Doe 
 V. Lewis, 5 Adolph. & Ell. E. 277.) 
 
 Where directors of a joint stock company granted a lease with 
 a power of re-entry, and siibsequently the company was incor- 
 porated by an act of parliament, enacting " that all contracts, etc., 
 theretofore entered into with the directors of the company, should 
 be as valid and efi'ectual to all intents and purposes, as if the com- 
 pany had been incorporated when the same contracts, etc., were 
 entered into, and as if the same had been entered into by the 
 incorporated company ; " it was held that the right of i-e-entry 
 was transferred to the incorporated company. {Doe v. Kendell, 
 2 Moody & Eobinson's E. 66.) 
 
 A power of re-entry cannot be reserved to a stranger. (Coke 
 Litt. 214.) Upon this principle, where, in a building lease, a 
 trustee and his cestui que trust were both demising parties, and 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 303 
 
 the power of re-entry was reserved to both, and the estate of the 
 title appeared in the recitals in the lease, the court, without argu- 
 ment, held the proviso to be void. {Doe v. Lawrence, 4 Taunt. 
 K. 23.) 
 
 Where a lease was made by a mortgagee, and the executrix of 
 a mortgagee, and the mortgagee demised, and the executrix demised 
 and confirmed, and a right of entry for a breach of covenants was 
 reserved "to them or either of them," it was held that this lease 
 operated as the demise of the mortgagee, and the confirmation of 
 the executrix, and that the right of re-entry, under the proviso, 
 enured to the mortgagee only. {Doe v. Adams, 2 Tyrwhitt's R. 
 289. Vide Doe v. Goldsmith, lb. 270.) But where a lessor 
 made an under lease, containing a proviso that the lessor and 
 lessee might re-enter for breach of covenant, it was held that 
 the lessee might alone maintain ejectment vvithout joining the 
 lessee; {Doe v. Wheeler, 4 Bing. H. 276.) And where a party 
 being possessed of a term of years, demised his whole interest, 
 subject to a right of re-entry on the breach of a condition, it was 
 held that he might enter for condition broken, although he had 
 no reversion. {Doe v. Bateman, 2 Barn. & Aid. R. 158.) 
 
 II. Upon the subject of forfeiture generally, a short digest of 
 Ihe cases only will be given, together with a plain statement of 
 the principles upon which the question seems to be determined. 
 Forfeiture, by reason of non-performance of covenants and condi- 
 tions, has already been considered, and it remains only to examine 
 those cases in which the tenancy may be forfeited by the acts of 
 the tenant, not specifically prohibited by the terms of tlie lease. 
 
 By the ancient feudal laws no man could alien without license 
 from the lord of the fee ; and any alienation or disposition was 
 then a forfeiture of the tenancy whether the same was prohibited 
 by the conditions of the lease or not. But in England, when the 
 allodial property prevailed in the Saxon times, the feudatory was 
 allowed to alien in some cases, and this privilege was not only 
 confirmed, but also enlarged and made general by Magna charta ; 
 so by that act the tenant or vassal might alien to whom he pleased, 
 provided he left sufficient to answer the lord's services, which seem 
 to have been a privilege mightily contended for. (Bac. Abr. tit. 
 Estate for life, c.) But notwithstanding this provision of Magna 
 charta, the rule stjll continues in England, that if the tenant for 
 life aliens in fee, this is a forfeiture, for the statute only permits a 
 
304 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 lawful disposition, and does not allow any alienation to the pre- 
 judice of him in reversion, and therefore, when tenant for life 
 takes upon himself to transfer the fee-simple, it is a renunciation 
 of the feud, and contrary to his oath of fealty, so if tenant for life 
 aliens to another for the life of the alienee, this is a forfeiture, for 
 it cannot be a lawful alienation within Magna charta, because it 
 is palpably to the prejudice of him in the reversion. This doctrine 
 is clearly settled by the early authorities, and until recently was 
 recognized in England to the fullest extent, and something akin to 
 it is the rule which prevails in the American states. 
 
 Tlie well settled rule of the common law is, that if the tenant 
 does any act inconsistent M'ith his character as tenant ; as if he 
 impugns the title of the lessor, affirms by matter of record the fee 
 to be in a stranger, claims a greater estate than he is entitled to, 
 or claims the estate in fee, b}' any mode of conveyance which has 
 the.effect of divesting the estate of the reversioner, as by a feoH- 
 ment, or other common law conveyance, a forfeiture will thereby 
 be incurred, and the landlord may re-enter upon him and resume 
 possession. (Taylor's Landlord and Tenant, § 488.) 
 
 Mr. Washburn says : " The conveyance by a tenant for life of a 
 greater estate than he has in the premises, a fee for instance, has 
 been allowed to have a different effect at different times, in Eng- 
 land and in this country. While conveyances by feoffment were in 
 use, such a conveyance was deemed to work a forfeiture of the 
 tenant's entire estate, upon the feudal notion that by making it 
 he had renounced the feudal connection between him and his 
 lord, and the estate in remainder or reversion had thereby been 
 divested by the wrongful transfer of the seisin to a stranger, and 
 the remainderman or reversioner might at once enter for the for- 
 feiture upon his original right, inasmuch as the tenant of the 
 particular estate had by his own act put an entire fend to his 
 original estate, and the same principle applied in all cases where 
 the tenant of a particular estate conveyed a greater one than he 
 was entitled to. * * * In this country the law seems to have 
 been generally regarded as the same in this respect as in England. 
 In those states where conveyances have the effect of feoffments, 
 accompanied by livery of seisin, or maybe made by common reeov-* 
 eries, it seems that a tenant for life may work a forfeiture of his 
 land by conveying a greater estate than he h^s." (1 Washb. on 
 Real Prop. 106.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 305 
 
 Ml'. Washburn cites authorities which fully sustain the view he 
 has given, although he apprehends the idea of a tenant for life 
 working a forfeiture by conveying a greater estate than he has, to 
 be rather a theoretic than a practical principle, since the deeds 
 ordinarily in use in the conveyance of lands, do not operate to 
 produce a forfeiture, though the tenant thereby affect to convey a 
 larger estate than he has. Of course, such deeds, in point of fact, 
 convey just what the grantor has, and nothing more. 
 
 In a note, Mr. Washburn says : " In Maine it is held, that if 
 tenant by curtesy conveys in fee, he forfeits his estate and the 
 reversioner m&y enter. {French v. Rollins, 21 Me. 372). And in 
 New Jersey, a similar principle prevails both as to tenants by 
 curtesy and in dower. (4 Kent's Com. 84.) See also 5 Dane's Abr. 
 11-13,. where a case is cited that a conveyance in fee in Massachu- 
 setts in 1784, worked a forfeiture, also a dictum by professor Jack- 
 son, in Grard v. Chase (17 Mass. 446), to same effect. But it is 
 probably true, that unless the case of dower or curtesy forms an 
 exception, a tenant for life does not in any case work any forfeiture 
 by conveying, in form, a greater estate than he has, since only 
 what estate he has passes by such deed. This is declared to be 
 the law by statute in many of the states, namely: Alabama, Code, 
 1852, § 1317; Maine, Eev. Stat. 1857, ch. 73, § 3; New York, 2 
 Eev., Stat. 4th ed. p. 148, § 158 ; Wisconsin Eev. Stat. 1858, ch. 
 86, § 4; Massachusetts, Gen. Stat. ch. 89, § 9; Minnesota, Comp. 
 Stat. 1859, ch. 35, § 4 ; Michigan, Comp. Stat. 1857, ch. 88, § 4. 
 {Grant v. Townsend, 2 Hill, 554; McCorry v. Kmg's Heirs, 3 
 Humph. 267, 271, 277; Dennett v. Dennett, 40 N. H. 505.") 
 
 This statement of Mr. Washburn is as comprehensive, and as 
 clearlj' expresses the doctrine of the cases upon the subject, as any 
 that can be devised ; and hence his own language is quoted at 
 length. The statutes of the states may have in some instances 
 taken away other grounds than those stated by Mr. Washburn, 
 which were causes of forfeiture at the common law ; but it is quite 
 probable that the one given by him is the only one that exists, and 
 this provision has been introduced generally into the statutes of 
 the several states. (4 Kent's Com. 104.) And in England, by a 
 recent statute, it is declared that no feoffment made in wrong 
 shall act tortiously, so that this ground of forfeiture by the com- 
 mon law is now removed there. 
 In the state of New York, it has been held, that, even before 
 S9 
 
306 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the Revised Statutes, a tenant for life did not forfeit his estate by 
 leasing in fee ; and, since those statutes, no form of conveyance will 
 work such forfeiture. It was said by Bronson, J. : "A tenant for 
 life only forfeits his estate when he conveys a fee by feoffment 
 with livery of seisin, or by matter of record, as a fine or recovery. 
 No form of conveyance can hereafter work a forfeiture. And, 
 under the old law, the lease was a harmless conveyance, which 
 only passed such estate as the lessor had to convey." {Grant v. 
 Townsend, 2 Hill's II. 554, 558. And vide Jackson v. Maueius, 
 2 Wend. E. 357.) 
 
 From the statutes quoted and the authorities, it is quite clear 
 that a conveyance by a tenant for life or years, of a greater estate 
 than he possessed or could lawfully convey, is no longer a ground 
 of forfeiture of the estate, either in England or any of the Ameri- 
 can states, and that matter, perhaps, may be considered as dis- 
 posed of. 
 
 III. Immediately connected with the subject of forfeiture of a 
 tenancy by an attempt to convey a larger estate than the tenant 
 for j'ears or life has, is the doctrine of forfeiture by disclaiming 
 the title of the landlord or the person under whom he holds pos- 
 session, or by some positive act, recognizing title from a hostile 
 Bouree. 
 
 By the common law the tenant for life or years forfeited his 
 estate by afSrming the reversion to be in any other person than 
 his lord. This doctrine was founded upon a rule in the old feudal 
 law, that if a vassal denied that he held the feud of his lord, and 
 it was proved against him, such denial was a forfeiture ; and the 
 denial might be when the vassal claimed the reversion himself, or 
 accepted a gift of it from a stranger, or acknowledged the rever- 
 sion to be in a stranger ; for, in either case, the vassal denied that 
 he held the feud from the lord. By the English common law, 
 however, the acts which were regarded as a denial must be done 
 in a court of record, to make them a forfeiture. "When the act 
 of denial appeared on record, it was considered equivalent and 
 equally conclusive as a conviction upon solemn trial ; and all 
 other denials were rejected. ( Vide Bees v. King, Forrest's Exch. 
 E. 22. Saim Case, Coop. E. 92.) This doctrine, therefore, in 
 respect to tenancies for life, has never obtained in this country. 
 But it is believed that the rule is recognized both in this country 
 and in England, in respect to tenancies for years, and it is very 
 
EJECTMENT AS BETWEEN LANDLOBD AND TENANT. 307 
 
 difficult to discover any difference in principle, so far as this ques- 
 tion is concerned, between tenancies for life and tliose for a definite 
 term of years. 
 
 Coke, in his commentary upon Littleton's teniu-es, says, tliat a 
 particular tenant may forfeit his estate in two manner of ways — 
 either in pais or by matter of record. Alienations in pais which 
 work a forfeiture are of lands which "lie in livery," that is, any 
 property which is transmissible by the species of conveyance to 
 which livery of seisin is incident, " when a greater estate passetli 
 by livery than the particular tenant may lawfully make, whereby 
 the reversion or remainder is divested. * * * Eut a particular 
 estate of any thing which lies in grant cannot be forfeited by any 
 grant in fee by deed. As if tenant for life or years of an advow- 
 son, rent common, or of a reversion or remainder of land by deed, 
 grant the same in fee, this is no forfeiture of their estates, for that 
 nothing passes thereby but that which lawfully may pass." The 
 learned commentator then takes up the case of forfeiture by matter 
 of record, which lie says may be in three manner of waj's : First, 
 by alienation by fines or common recoveries by which the remain- 
 der is divested; secondly, by claim, express or implied ; thirdly, 
 by affirming the reversion or remainder to be in a stranger, and 
 that either actively or passively. He afterward says, that the 
 same rules apply to tenant for years, tenant by statute merchant, 
 statute staple or elegit. (Co. Litt. 252, a.) 
 
 It has been supposed that a tenant for' years forfeits his term by 
 a denial of the title of his landlord by parol, and some of the cases 
 are a little ambiguous on the subject. The remarks of Chief- 
 Justice Savage, in a case decided by the supreme court of the 
 state of New York, certainly give countenance to the idea that 
 a parol denial of the landlord's title may work a forfeiture of a 
 term for years. He quotes Cruise as an authority for such a 
 doctrine, and seems to give it his sanction, although the case before 
 the court did not require it. {Jackson v. Vincent, 4 Wend. R. 
 633.) A similar opinion was also advanced in a case in Penn- 
 sylvania. {Rewman v. Butter, 8 Watts' E. 51.) But both the 
 supreme court and the court of appeals of the State of New York 
 have now finally held that the denial orally, by a tenant for life or 
 years, of his landlord's title, and the assertion that he owns the 
 land in fee, and owes no rent for them, does not work a forfeiture 
 of the term, or authorize a landlord to maintain ejectment for the 
 
303 XiAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 lands demised, and further, that mere words can never work a 
 forfeiture of an estate for life or 3'ears. In his opinion in tlie 
 court of appeals, Denio, J., said : " If any mere verbal disclaimer 
 by a tenant for years could be held to work a forfeiture of the 
 term, the evidence in this ease would fm-nisli a suitable instance 
 for the application of the principle. The defendant distinctly dis- 
 avowed the relation of tenant, claimed to be the absolute owner 
 in fee of the demised premises, and. put his landlord wholly 
 at defiance; and he did this not in a single casual conversation, 
 but repeatedly and deliberately, and after he had availed hiniself 
 of legal advice." But after a very thorough exarnination of the 
 authorities, both English and American, the learned judge came 
 to the conclusion that the decision of the supreme court in the 
 case, wherein it was held, that a parol disclaimer of the landlord's 
 title, by the tenant, does not work a forfeiture of a written lease 
 for a term of years, was right, and in this conclusion all the other 
 judges concurred. {De Lancy v. Ganun, 9 N. Y. R. 9. Same 
 Case, 13 Barb. E. 120.) 
 
 This precise question came under the consideration of the court 
 of queen's bench of England in 1 839, when it was distinctly held 
 that a tenant for a dehnite number of years does not forfeit his 
 term by orally refusing, upon demand of the rent, made by his 
 landlord, to pay the rent, and claiming the fee as his own. The 
 defendant was in possession under an unexpired lease for ninety- 
 nine years, at an annual rent, and determinable on lives. On an 
 application for rent by the agent of the plaintiif, who was entitled 
 to the reversion, the defendant refused to pay it, and asserted that 
 the fee was in himself. The judge, at the assizes, directed the 
 jury to find for the plaintiff if they were of the opinion that the 
 words used by the defendant were a serious claim of the fee. The 
 jury found a verdict for the plaintiff. The case was very learnedly 
 argued in the court of queen's bench, and by the unanimous 
 ppiPiion of the court it was held that the plaintiff could not 
 recover. Lord Denman, Ch. J., said : " It may be fairly said, 
 when a landlord brings an action to recover the possession from a 
 defendant who has been his tenant from year to year, that evi- 
 dence of a disclaimer of the landlord's title by the 'tenant is 
 evidence of the determination of the will of both parties, by which 
 the duration of the tenancy, from its particular nature, was 
 limited. But no case, I think, goes so far as the present ; and I 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 309 
 
 feel the danger of allowing an interest in land to be put an end 
 to by mere words." 
 
 Littledale, J., said: "We should not, indeed, be justified in 
 putting an end to a state of land on account of its danger, for we 
 must give parties whatever the law entitles them to ; but here the 
 law leads to no such consequence. The case is not like that of a 
 tenancy from year to year, which lasts only as long as the parties 
 please, and when what is called a disclaimer is evidence of the 
 cessation of the will. Plere property' is claimed on the ground of 
 forfeiture. Now, assume the jury to have been right in their 
 verdict ; still the facts do not go far enough for a forfeiture. In 
 Comyn's Digest, title Forfeiture, and in Yiner's Abridgment, 
 title Estate, a very great number of instances of forfeiture are 
 given ; but there is no allusion to any case of this kind ; the in- 
 stances are either matters of record, or of acts in pais quite difier- 
 ent from what is here insisted upon." And Patterson, J., said : 
 " N^o case has been cited where a lease for a definite term has been 
 forfeited for mere words. "We know that mere words cannot work 
 a disseisin, although some acts have been held to work a disseisin 
 at the election of the party disseised, which, as against him, would 
 not work a disseisin. An attornment, again, is an act. Here 
 there is no act ; and if we hold that there was a forfeiture, we 
 should be going much beyond any previous decision. It is some- 
 times said that a tenancy from year to year is forfeited by dis- 
 claimer ; but it would be more correct to say that a disclaimer 
 furnishes evidence in answer to the disclaiming party's assertion 
 that he had no notice to quit ; inasmuch as it would be idle to 
 prove such a notice when the tenant has asserted there is no longer 
 any tenancy." {Doe v. Wells, 10 Adolph & Ell. E. 42.) 
 
 This question is of no practical importance except in cases of 
 tenancies for life or a definite term, for the reason that in cases 
 of a tenancy at will or sufi'erance, or from year to year, the estate 
 lasts only as long as the parties please ; and then what is called a 
 disclaimer is evidence of the cessation of the will ; or in such cases 
 it has been held, that such a disclaimer furnishes evidence in 
 answer to the disclaiming party's assertion that he has had no 
 notice to quit, inasmuch as it would be idle to prove such notice 
 where a tenant has asserted that there is no longer any tenancy. 
 But the question is of importance in respect to tenancies for life, 
 and for years, and the subject has been dwelt upon thus elabo- 
 
310 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 atelj here, from the fact tliat there has obtained an impression, 
 justified from some dicta in the books, that a parol denial of a 
 landlord's title worked a forfeiture of a term for years, if not for 
 life ; while it is probable that no case can be found where the 
 judgment of the court has proceeded upon that distinct ground ; 
 and it has often been decided that parol evidence of a disclaimer of 
 title to land is inadmissible. {Jackson v. Vosburgh, 7 Johns. R. 
 186. Jackson v. Kisselback, 10 ib. 336. Brant v. Livermore, lb. 358. 
 Jackson v. Miller, 6 Cow. E. 751. Same Case, 6 Wend. R. 228.) 
 Chancellor Kent enumerates the cases of forfeiture by the tenant 
 as follows : " If he acknowledges or affirms, by matter of record, 
 the fee to be in a stranger, or claims a greater estate than he is 
 entitled to, or aliens the estate by feoffment, with livry, which 
 operates upon the possession, and effects a disseisin, or if he breaks 
 any of the conditions annexed to the lease, he forfeits the same." 
 (4 Kent's Com. 106.) The first and last cases enumerated are the 
 only ones wiiich are at present recognized in the American states. 
 
 Where a plaintiff in replevin denies in his plea, that the place in 
 which the distress was taken was within the demised premises, 
 such denial does not amount to a general disclaimer of all holding 
 under the lessor, so as to work a forfeiture of the lease. {Jackson 
 V. Rogers, 11 Johns. E. 33.) And it was held in this case, that in 
 an action of ejectment by the landlord to recover the premises, on 
 the ground of their being forfeited by such disclaimer, the tenant 
 may give in evidence, that the disclaimer was intended only as to 
 the place in which the distress was taken, and also, that such place 
 was not covered by the lease. But, notwithstanding, the dis- 
 claimer in the case, was something more than by parol, it was 
 distinctly decided that it did not work a forfeiture of the estate; 
 and the question was raised, but left undecided, whether the doc- 
 trine of forfeiture applies at all to a disclaimer by tenant for life. 
 
 It has been held, that when the tenant gives np possession to 
 hostile claimant, for the purpose of enabling the claimant, in 
 fraud of the landlord, to set up the adverse title against the 
 landlord, the same is a forfeiture of the lease. {Doe v. Flynn, 
 1 Cromp. Mees. & Eos. E. 137.) 
 
 Lord Lyndhurst, C. B., observed : " If a tenant sets up a title 
 hostile to that of his landlord, it is a forfeiture of his term ; and it 
 is the same if he assists another person to set up such a claim, 
 ■whether he does the act himself or only colludes with another to 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 311 
 
 do it, it is equally a forfeiture ;" and in this conclusion of the 
 learned Baron, the rest of the court concuri-ed. And in another 
 case Lord Eedesdale assumed that the assenting by a tenant to the 
 claim of a stranger was a forfeiture ; but it is evident from the case, 
 tliat this was a mere dictum. (Hovenden v. Lord Annesley, 2 
 Schoales & Lefroy's R. 607, 625.) The principle, according to Mr. 
 Preston in tliis regard is, that the term is forfeited by the fraud of 
 the termor in attempting to gain the freehold ; and that the admis- 
 sion (by the assignor) of a title to tiie reversioner in a stranger is 
 an attornment, which works a forfeiture, because it is between the 
 termor and the reversioner. ( Vide note [5] to Doe v. Lynes, 3 
 Barn. & Ores. E. 899.) 
 
 In one case, it was held that a tenancy from year to year was 
 determined by. the tenant having written a letter to the rever- 
 sioner's attorney, stating that his connection as a tenant had ceased 
 for several years, but this is distinguishable from the case of a ten- 
 ancy for life or for years. {Doe v. Grubb, 10 Barn. & Ores. E. 816.) 
 
 The rule is stated by Baldwin, justice, in a case in the supreme 
 court of the United States, that " if a tenant disclaims the tenure, 
 claims the fee adversely in right of a third person or his own, or 
 attorns to another, his possession then becomes a tortious one by 
 the forfeiture of his right. The landlord's right of entry is com- 
 plete, and he may sue at any time within the pei-iod of limitation ; 
 but he must lay his demise of a day subsequent to tlie termination 
 of the tenancy, for before that he had no riglit of entry. By bring- 
 ing his ejectment, he also affirms the tenancy and goes for the for- 
 feiture." ( Willison v. Watldns, 3 Peter's E. 43, 49.) A similar 
 doctrine was laid down in a case in the supreme court of Yermont. 
 {SJierman v. Champlain Transportation Company, 31 Yt. E. 110.) 
 But a contrary doctrine is held in Wisconsin and Alabama. In 
 Wisconsin, a tenant accepted a deed in fee from one who was not 
 his lessor, and the court held, that it did not work a forfeiture of 
 the estate. {Rossul v. Jarvis, 15 Wis. E. 577.) And in Alabama, 
 it was held that the taking a new lease from a third party and 
 attorning to him could not affect the rights of the landlord. {Doe v. 
 Reynolds, 27 Ala. E. 376.) Mr. Washburn cites authorities from 
 a number of the states from which he says the doctrine is sustained, 
 that "the effect of a disclaimer, disseisin, or an attornment to an 
 adverse claimant, or collusion with him to deliver possession, aa 
 between landlord and tenant, and those claiming under such ten- 
 
312 iiAW OW EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ant, unless a descent cast by death of disseisor, would be a for- 
 feiture of the term, and the landlord might enter or bring eject- 
 ment or forcible detainer." (1 WasKb. on Real Prop. 493, citing 
 Green v. Munson, 9 Vt. E. 37. Wild's Lessee v. Serpell, 10 Gratt. 
 R 405. North v. Barnum, 10 Vt. E. 220. 4 Kent's Com. 106. 
 Jackson v. Vincent, 4 Wend. E. 633. Wardsworthville School v. 
 Meets, 4 Eich. [S. C] E. 50. Tusselman v. Worthivgton, 14 III. 
 •E. 136.) In the same note, the learned commentator cites another 
 case, wlierein it appeared that the lessee for a term of years attorned 
 to a stranger, and denied the landlord's title, and claimed to hold 
 under the title of the stranger; and the court said the moment the 
 lessee disavowed tlie title of the lessor, and claimed to set up a 
 hostile title in the stranger, the lease became forfeited ; and the 
 lessor's right of entry was complete. {Fortier v. Ballarde, 5 Gilm. 
 E 41.) "But," says Mr. Washburn, "the doctrine of these 'cases 
 does not seem to be warranted, as a general proposition of law, 
 where the demise is made by written, lease for a term of years." 
 (1 Washh. on Heal Prop. 494. Vide also Doe v. Cooper, 1 Man- 
 ning & Granger's E. 135. Montgomery v. Craig, 3 Dana's E. 101. 
 RusseU V. Fabyan, 34 IST. IT. E. 223.) 
 
 So, after all, no rule can be laid down which may be regarded 
 as general upon this subject, except that a forfeiture occurs by the 
 non-payment of rent, or the breach of some stipulation in the con- 
 tract, under which tiie tenant occupies the demised premises, and 
 for the commission of waste, that is, such waste as may be inju- 
 rious to the reversion ; that is to say, where a right of re-entry is 
 reserved in the lease for those causes. And in respect to the other 
 grounds of forfeiture by the common law, and hereinbefore stated, 
 it may be affirmed that those grounds are still recognized, except 
 where the rule has been modified by statute. 
 
 lY. The forfeiture of a lease, by breach of a covenant or condi- 
 tion, other than for non-payment of rent, may be waived, in like 
 manner as a forfeiture for non-payment of rent ; and it may be 
 affirmed as a general proposition, that whatever acts of the land- 
 lord will be a waiver of the forfeiture for non-payment of rent, 
 will be a waiver of the forfeiture for any other cause. What will 
 be regarded as a waiver of the forfeiture for non-payment of rent, 
 lias already been considered, and a few authorities will here be 
 referred to in cases of forfeiture for other causes. 
 
 If the landlord receives rent accruing subsequently to the for- 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT, 313 
 
 feiture, for whatever cause tlie forfeiture may be, unaccompanied 
 by circumstances which show a contrary intention, will be. con- 
 sidered a waiver of the forfeiture. {Fux v. Swan, Styles' E. 482. 
 Goodright v. JDamds, Camp. E. 803. Doe v. Pritchard, 5 Barn. 
 & Adolph. R. 765.) But the reception of rent by the landlord, in 
 utter ignorance of a breach of a condition working a forfeiture of 
 the term, is not a waiver of a forfeiture in any case. (Keeler v. 
 Davis, 5 Dner's E. 507. Vide Clark v. Cummings, 5 Barb. E. 339.) 
 
 It has been held, that an unqualified demand for rent after for- 
 feiture will of itself be sufficient to waive the forfeiture, although 
 the rent should not be paid. {Doe v. Birch, 1 Mees. & "Wels. E. 
 402.) And it seems to have been ruled at nisi prius in England, 
 that a notice to quit will operate as a waiver of a forfeiture for 
 non-i'epair until after its expiration. {Doe v. Miller, 2 Carr. & 
 Pa. E. '348.) The authority of this case as reported, however, is 
 regarded somewhat doubtful by Mr. Adams. (Adams on Eject. 
 193, note e.) 
 
 It has been held, that acceptance of rent accruing, due after the 
 lessee has been discharged under the insolvent debtors' act of Eng- 
 land, is a waiver of a forfeiture accruing by reason of his previous 
 insolvency. {Doe v. Reqds, 4 Bing. N. 0. 384.) And, although it 
 cannot be correctly termed a waiver of a forfeiture, it has beea 
 held, that a lessor cannot take advantage of a forfeiture against a 
 person who has purchased the lease subsequent to the breach, 
 under the lessor's advice. It is very obvious that the principle of 
 estoppel would interfere in such a case to prevent the lessor taking 
 advantage of the forfeiture. {Doe v. Eykims,- 1 Carr. & Pa. E. 
 154. Vide Doe v. Knight, 1 Ey. & Moo. E. 343.) 
 
 "Where there are covenants in a lease to keep the demised prem- 
 ises in repair by the lessee, and to repair within three months after 
 notice by the lessor, and there is a clause of re-entry for breach 
 of the covenants or either of them; it was held, that .the landlord, 
 giving the notice to repair within three months, when the premises 
 were out of repair, was a waiver of a forfeiture by a breach of the 
 general covenant to repair. {Doe v. Meux, 4 Barn. & Cres. E. 
 606. Doi V. Lewis, 6 ]S"evile & Manning's E. 672.) 
 
 When there is a right reserved to the landlord to enter and do 
 
 repairs himself in case of a breach of the covenant to repair, it has 
 
 been held, that an election of the landlord to do /the repairs is a 
 
 waiver of a general power to re-enter in case of the breach of the 
 
 40 
 
314: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 covenant before mentioned. {Doe v. Lewis, 5 Adolpla. & Ell. 
 K. 277.) 
 
 But where the lessee covenanted to build on the demised prem- 
 ises within a certain period, on penalty of forfeiture upon the 
 breach of the covenant, it was held, that the forfeiture was not 
 waived, upon the failure of the lessee to complete the building, 
 by the lessor's steward permitting tlie lessee to employ workmen 
 in completing the buildings for a short period after the forfeiture. 
 {Doe V. Brindley, 12 Moo. E. 37. Same Case, 22 Eng. C. L. R. 625.) 
 A waiver of one forfeiture incurred by breach of covenant, will 
 not be a waiver of a second forfeiture incurred by another breach 
 of the same covenant ; nor where the breach is a continuing 
 breach, will the landlord be precluded from taking advantage of 
 it, by having received rent after tlie breach was originally com- 
 mitted. For example, when a right of i-e-entry was reserved on a 
 breach of covenant not to underlet, it was held that the lessor 
 was entitled to re-enter upon a second underletting, although he 
 had his right so to do upon the first. {Doe v. Banks, 4 Earn. & 
 Aid. E. 401. Lloyd v. Crispe, 5 Taunt. E. 249.) 
 
 So a covenant on the part of a lessee, to plant a certain number 
 of apple trees on the demised premises, and to replace those that 
 decay or were destroj'ed, so as always to preserve the given num- 
 ber during the terra, is held to be a contimdng covenant / and the 
 receipt of rent, after a breach of the covenant, does riot prevent 
 the landlord from re-entering, if , subsequent to the payment of rent, 
 there is a failure in performance on the part of the tenant. And 
 it was further held that the receipt of rent does not operate as a 
 waiver, unless the rent received accrued subsequent to the act 
 which works the forfeiture., {Bleecker v. Smith, 13 "Wend. E. 530. 
 And vide Fryett v. Jeffreys, 1 Esp. N. P. E. 395.) 
 
 So also, where a lease of coal mines named a certain rent, and 
 contained a proviso that the lease should be void if the tenant 
 should cease working at any time, two years, and the tenant did 
 cease working two years, and then paid rent, but did not resume 
 the working ; it was held that this was a continuing breach, and 
 that ejectment might be maintained for the ceasing to work after 
 the payment of the rent. So also, where the forfeiture incurred 
 was by using rooms in a house in the manner prohibited by the 
 lease, it was held that such use was a continuing breach, and that 
 the landlord might recover after receiving rent, provided the use 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 315 
 
 continued after such receipt. {Doe v. Banks, 4 Barn. & Aid. 
 li. 401.) 
 
 It has also been held that a proviso for re-entry " in case the 
 tenant shall become a bankrupt or insolvent," means, as to tlie 
 latter clause, a general inability to pay debts, and not taking the 
 benefit of the insolvent debtor's act; and such inability will be a 
 continuing breach until the party shall be discharged of his debts 
 by that act. {.Doe v. Rees, 4 Bing. N. C. 384, and the cases 
 there cited.) And the breach of a covenant " to insure, and keep 
 insured, the demised premises, during the term," has been held to 
 be a continuing breacii for such portion of time as the premises 
 shall remain uninsured. {Doe v. Peck, 1 Barn. & Adolph Tl. 428.) 
 
 "Where the covenant in the lease is a continuing one, acquiescence 
 or waiver by acceptance of rent, has been held to have no efl'ect 
 beyond the year for whieli^4here has been a breach. {Doe v. 
 Gladwin, 6 Queen's B. R. 953. Same Case, 51 Eng. C. L. E. 952.) 
 
 "Where the forfeiture was for cutting timber in violation of the 
 covenants of the lease, and the lessor accepted rent for a period 
 subsequent to such cutting, knowing that the timber had been cut, 
 this was held to be a waiver of the forfeiture. {Gomher v. Ilack.ett, 
 
 6 "Wis. E. 323.) So where the lessee covenanted to build a house 
 upon the demised premises within a prescribed time, and failed to 
 do so, by reason of which there was a forfeiture of the estate, it 
 was held, that the acceptance of rent by the lessor after such 
 breach was a waiver of the forfeiture. {McGlynn v. Moore, 25 
 Cal. E. 394.) But where the covenant of the lessee was not to 
 obstruct a certain way, and the tenant did obstruct such way, and 
 the lessor received and accepted the rent for a part of the time 
 during which the obstruction continued, the court held, that this 
 was not a waiver of the continued breach after the period for 
 which the rent was received. {Jackson v. Allen, 3 Cow. E. 220. 
 But vide Camp v. Pulver, 5 Barb. E. 91. Banoilhet v. Baitelle, 
 
 7 Cal. E. 454.) 
 
 It has been held, that a landlord will not lose his right to re- 
 enter by merely lying by, however long the period, and witnessing 
 the act of forfeiture ; but if, with full knowledge thereof, he permits 
 the tenant to expend money in making improvements, it is a cir- 
 cumstance from which the jury may presume a waiver, as well as 
 ground of application to a court of equity for relief In such a 
 case, perhaps, the principle of estoppel would forbid that the land- 
 
316 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 lord sliould take advantage of the forfeiture. {Doe v. Allen, 3 
 Taunt. K. 78.) The same case, however, holds that the landlord's 
 knowleage of unauthorized acts of the tenant, without actual 
 interference, will not preclude him from availing himself of the 
 forfeiture of the estate by the lessee ; and where there is a con- 
 tinuing cause of forfeiture, the landlord will not be prevented 
 from taking advantage of the forfeiture, for the reason that it is a 
 fresh breach of the condition in such case every day. {Doe v. 
 Watt, 1 Man. & Ey. E. 694. Jaclcson v. Allen, 3 Cow. E. 220. 
 Bleecker v. Smith, 13 Wend. E. 53.) 
 
 But it has been held in a recent and well-considered English 
 case, that mere standing by and seeing the lessee making altera- 
 tions which are in breach of his covenant, does not operate as a 
 waiver on the part of the lessor ; Williams, J., saying : " As to the 
 alleged waiver in mere lying by, will not do ; there must be some 
 positive act of waiver." {Perry v. Davis, 3 J. Scott's E. N. S. 
 769. Same Oase, 91 Eng. C. L. E. 768.) And Heath, J., said, in 
 a case hereinbefore referred to : " There are a great many cases in 
 the old books where it is held, that a mere knowledge and acqui- 
 escence in an act constituting a forfeiture does not amount to a 
 w'aiver." {Doe v. Allen, supra.) 
 
 It has been before observed, that the acceptance of rent after 
 forfeiture would not be a waiver of the forfeiture, provided the 
 same was received in ignorance of the breach of the condition by 
 which the forfeiture was incurred ; and it may be affirmed, as a 
 general proposition, that no act of the landlord will operate as a 
 confii'mation of a lease rendered voidable by a breach of covenant, 
 unless he had full notice, at the time of such act, that ilie for- 
 feiture had been committed. {lioe v. Harrison, 2 Term E. 425. 
 Oroft\. Lumley, 5 Ellis & Blackburn's E. 648. Keeler v. Davis, 
 5 Duer's E. 507.) 
 
 The right of entry may be suspended without being waived. 
 {Doe V. Brindley, 4 Barn. & Adolph. E. 84.) As an example, 
 where the landlord had, under the lease, a riglit to re-enter for the 
 non-payment of taxes ; he told the tenant he would eject him if 
 they were not paid, but on his promise to pay them by the first 
 day of January, gave him that day to pay them ; the taxes were 
 not paid, when, in February, the landlord accepted rent which fell 
 due on the first day of the month ; the court held that the right 
 of the landlord to re-enter was not gone, but that he could not 
 
EJECTMENT AS BETWEEN LANDLOEB AND TENANT. 317 
 
 enforce it without further notice ; expressly recognizing the proposi- 
 tion laid down at the head of this paragraph. {Maitrioe v. Millen, 26 
 Barb. E. 41.) It may be added here, that a forfeiture once waived can 
 never afterward be claimed. {Chalker v. ChalJcer, 1 Conn. 11. 79.) 
 
 Y. In connection with this branch of the subject, it should be 
 stated that there is a material distinction between leases for lives 
 and leases for years, in respect to the consequences of a forfeiture 
 upon the breach of a condition, where the lease is declared " to he 
 null and void" or " to cease and determine,^'' etc., upon tlie breach 
 of the condition, instead of being expressed in the common form, 
 " that it shall and may le lawful, for the lessor, in such case to 
 re-enter." In leases for lives, whatever may be the words of the 
 conditibn, it is in all cases held, that if the tenant be guilty of any 
 breach of it, the lease is voidable only, and not void ; and tljere- 
 fore not determined until the lessor re-enters. The reason assigned 
 is, that where an estate commences hy livery, it cannot be deter- 
 mined before entry ; and, consequently, if the lessor do any act 
 whicli amounts to a dispensation of the breach, the lease which was 
 before voidable only, is thereby affirmed, and the forfeiture waived. 
 But when the condition of the import of those first above mentioned 
 is inserted in a lease for years, if the lessee be guilty of any breach 
 of it, the lease becomes absolutely void, and determined thereby, 
 and cannot be again set up by any subsequent act of the lessor. 
 But if the condition be " that it shall and may he lawful for the 
 lessor to re-enter" or " that the term shall cease and determine if 
 the lessor please," or the like, the lease will be only voidable by a 
 breach of the condition ; and the forfeiture may be waived by a 
 subsequent acknowledgment of a tenancy, in tlie same manner 
 as in all cases of leases for lives. (Adams on Eject.' 196, 197. 
 Doe V. Old, cited by Adams on p. 197, note 5. Co. Litt. 215 a. 
 Pennant's Case, 3 Coke's E. 64.) 
 
 But the distinctions above Referred to do not exist where the 
 forfeiture accrues by reason of non-performance of a covenant, 
 instead of the breach of a condition. In all cases of this nature, 
 whatever may be the words of the proviso, leases for lives and 
 leases for years are governed by the same principle, and a for- 
 feiture may be enforced, or the lease confirmed, at the option of 
 the lessor. {Rede v. Farr, 6 Mau. & Sel. R. 121. Doe v. .BancTcs, 
 4 Barn. & Aid. E. 401. j^rnsby v. Woodward, 6 Barn. & Cres. E. 
 519. Doe V. Birch, 1 Mees. & Wels. E. 402.) 
 
318 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 As has been stated in another place, a proviso in a lease to 
 re-enter for a condition broken operates only during the term, and 
 cannot be taken advantage of after its expiration. Thus, where a 
 lease for ninety years, if A and B should so long live, was granted, 
 with a proviso giving the power of re-entry, in case the lessee 
 should under-let the premises for the purpose of tillage, and an 
 under-tenant of the lessor plowed up and sowed the land, but the 
 lessor did not enter during the continuance of the estate ; it was 
 held, that the lessor could not hold the emblements on the alleged 
 ground that the right of re-entry accrued for condition broken at 
 the time the crops were sowed.- {Johns v. Whitley, 3 Wils. R. 127.) 
 
 It lias been before shown, that relief will be granted to a tenant, 
 in the common-law courts, in case of forfeiture for non-payment 
 of rent, on his tendering the amount due ; but those courts have 
 no power to stay proceedings in ejectment on a forfeiture by breach 
 of covenant to repair, or by breach of any other covenant in the 
 lease. A similar rule prevails in equity, except that equity will 
 grant relief in cases of breach of covenants for repairing, insuring 
 or doing any specific acts, where the breach occurred by reason 
 of unavoidable ignorance or accident, and compensation can be 
 estimated in damages. {Doe v. Ashby, 10 Adolph. & Ell. K. 71. 
 Hill V. Barclay, 18 Ves. Jr. E. 63. Reynolds v. Pitt, 19 ib. 134. 
 Sx parte Vaughan, 1 Turn. & Russ. R. 435. Green v. Bridges, 
 4 Sim. R. 100. Harris v. Bryant, 4 Russ. R. 91.) 
 
 VI. A few suggestions in respect to the surrender of the lease 
 will close the present chapter; and as this subject is involved 
 more frequently in actions for the recovery of rent, or the damages 
 for breach of covenants, than in actions of ejectment for the recov- 
 ery of the estate, it will require but little consideration here. 
 
 A surrender is defined by Lord Coke, and by other authorities, 
 to be a yielding up of an estate for life or years to him that has an 
 immediate estate in reversion or remainder, or the resignation of a 
 particular estate for life or for years to him in the immediate 
 reversion or remainder ; and it can only be to the' pei-son who has 
 ths reversion or remainder. (Co, Litt. 338, a. Springstein v. 
 Schermerhorn, 12 Johns. R. 357. Comyn's Digest, title Sur- 
 render, a.) It is a conveyance, the converse of a release. The 
 release operates by the greater estate descending upon the lease ; 
 the surrender is the falling of the less estate into the greater. 
 (Willard on Real Prop. 437. Touchstone, 300, 301.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 319 
 
 By the common law, a surrender might be made without deed, 
 as by a tenant for life yielding up the possession to him in remain- 
 der or reversion, which was always favored in law. (Co. Litt. 
 338, a.) Eut by the statute of frauds existing both in this country 
 and in England, a surrender, like other convej'ances of an estate 
 or interest in land, is required to be in writing. The court of 
 appeals of the state of New York, however, have decided that the 
 unexpired term for a year in a lease for three years may be sur- 
 rendered by parol ; that the statute declaring that no estate or 
 interest in lands, other than leases for a term not exceeding one 
 year, shall be created, etc., or surrendered or declared, unless by 
 act or operation of law, or by a deed or conveyance in writing, 
 relates to the estate of the tenant, and not to the terms of the 
 instrument by which it is created. Mason, J., who delivered the 
 opinion of the court, remarking: "The statute has reference to 
 the actual estate or interest which is to be surrendered. When it 
 excepts leases for one year, it refers to the estate or interest of the 
 tenant, to his estate for a year, and not to the form of the lease by 
 which that interest or estate is created or seciired. In order to 
 secure the true interest and spirit, we must regard this as a lease 
 for a year. So far as the estate or interest remaining under tlie 
 lease is concerned, it is a lease but for a year." {Smith v. Devlin, 
 23 N. Y. R. 363, 364.) So also surrenders have been presumed in 
 certain cases ; for example, where the purposes of a trust estate 
 have been satisfied {Doe v. Staple, 2 Term U. 6S4-. Doe v. Davies, 
 12 B. li. 430) ; or if, the beneficial occupation of the estate by the 
 possessor induces a supposition, that a conveyance of the legal 
 estate has been made to the party beneficially interested {Doe v. 
 Williams, 2 Mees. & Wels. E. 749) ; or where it is for the interest 
 of the owner of the inheritance that the term should be considered 
 surrendered {Doe v. Wright, 2 Barn. & Ores. R. 710) ; or where the 
 trust is a plain one, and a court of equity would compel the trustees 
 to make a conveyance. {Doe v. Slade, 4 Term R. 682.) But such 
 presumptions would never be made if the surrender was a breach 
 of the trust ; or against the owner of the inheritance who is inter- 
 ested in upholding it ; or where the title of the party for wliom 
 the presumption is required is a doubtful equity ; or where the 
 trust estate, though satisfied, is still, in point of fact, outstanding 
 in the trustees. {Doe v. Scott, 11 East's E. 478. Keene v. Dear- 
 don^ 8 ib. 248. Goodtitle v. Jones, 7 Term R. 43. And vide Doe 
 
320 LAW OF EJECTilBNT AND ADVERSE ENJOYMENT. 
 
 V. mUer, 2 Barn. & Ores. E. 782. Doe v. Plowman, 2 Bam. & 
 Adolph. E. 573.) The doctrine of presumed surrenders, however, 
 has been abolished by statute in England (809 Vict. ch. 112, §§ 1 
 and 2) ; and. probably a surrender will not be presumed in any of 
 the American states, except in those cases where any other con- 
 veyance might be presumed from a similar state of facts. 
 
 The surrender may be express or implied. The latter is where 
 an estate, incompatible with the existing estate, is accepted by the 
 tenant for life ; as if the lessee take a new lease of the same land. 
 (2 Bouv. Inst. 263.) But in order that the second lease may oper- 
 ate as a surrender of the first, it is essential that the lease be a valid 
 one ; although it is not necessary that the second lease should be 
 to the first lessee. If given to a third person by the consent of the 
 first lessee, it operates as a surrender. {Bedford v. Terhune, 30 
 K Y. E. 453.) 
 
 But there is a surrender by act or operation of law, where the 
 owner of a particular estate has been a party to some act the validity 
 of which he is by law afterward estopped from disputing, and a 
 lien created which would not be valid, if his particular estate had 
 continued. The acceptance by a tenant of a new lease of the same 
 premises, during the term of the first lease, is deemed a virtual 
 surrender of the first lease, and this is an illustration of a surrender 
 by act or operation of law. Such presumption arises from the 
 acts of the parties, which are supposed to indicate an intention to 
 that efiect ; but when such intention cannot be presumed, without 
 doing violence to common sense, the presumption will not be sup- 
 ported. ( Van Rensselaer's Heirs v. Penniman, 6 "Wend. E. 569.) 
 '' The implication of intention from the acts of the parties, is the 
 only legal foundation which will support them (surrenders), in all 
 their extent" (Eoberts on Frauds, 257); that is, because the lessee 
 cannot legally execate a second lease of the same premises during 
 the time of the first lease. "Where the lessor takes a second lease 
 unexplained, this act admits the power of the lessor, which he can- 
 not legally have without a surrender of the first. The presump- 
 tion of law, therefore, is that a surrender has been made. The 
 doctrine of this presumption is founded upon the known disposi- 
 tion of man to enjoy what is his own. No man would take from 
 another a lease of his own farm or house, and agree to pay rent for 
 it. But, as before remarked, the second lease must be a valid one 
 in order to eflfect the surrender of the first ; and it has accordingly 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 321 
 
 been held that a parol lease for more than a year to a tliird per- 
 son, though lie takes possession, will not operate as a surrender of 
 a term of six years, since by the statutes of New York, a parol 
 lease for more than .one year is entirely void. {Schieffelin v. Car- 
 2Jenter, 15 Wend. 400. .Whitney v. Meyers, 1 Duer's R. 266.) It 
 is clearly settled by authority, that the second lease in all cases 
 must be a valid one, so as to convej' the interest it professes to con- 
 vey, to the lessee, and also to bind liim to the performance of the 
 covenant or agreement in favor of the lessor, in order to operate 
 as an effectual surrender of the first lease. ( Vide Zouch v. Par- 
 sons, 3 Burr. E. 179i, 1807. Wilson v. Sewell, 4 ib. 1075, 1980. 
 Davis V. Stanley, Ib. 2210.) Without this, the reason given for 
 tlie im,plied surrender would fail, and the intent of the parties be 
 altosetlier defeated. Instead of being a surrender of the first 
 lease, it would be a surrender of the whole estate and interest in 
 the premises, and a virtual determination of the existence of any 
 tenancy. 
 
 In one case in England, the plaintiff had let the premises to the 
 defendant for three years ; at tlie end of tlie first year the defend- 
 ant quit, and wrote a letter to the plaintiff, in which he requested 
 him to let the premises to some other person ; the plaintiff did let 
 tliem to another for three years, and the new tenant entered and 
 paid two quarters' rent, and became insolvent ; the court held that 
 there was a surrender of the old lease, by operation of law. [Nich- 
 ells V. Atherstone, 10 Adolph. & Ell, E. 944. Same Case, 59 Eng. 
 0. L. E. 943.) Certainly, in a case like this, the lessor ought not 
 to be permitted to maintain an action of ejectment for the demised 
 premises against the last tenant ; and if the first tenant had never 
 yielded possession, the other facts would not have proved the sur- 
 render; so that the action of ejectment could not be maintained in 
 either event. As an illustration, however, the case has its purpose 
 here. Eeference may also be had to a case decided by the supreme 
 court of the state of New York, where the same doctrine was laid 
 down as that in Adolphus and Ellis, and upon almost precisely 
 similar facts. (Smith v. Niver, 2 Barb. E. 180. Vide also Mathews 
 V. Sawell, 8 Taunt. E, 272. Hammerlin v. Stead, 3 Barn. & Ores. 
 E. 478, Thomas v. Cooh, 2 Starkie's E. 408. JDrury Lane Co. v. 
 Chapman, 1 Carr. & Kir. E. 14. Doe v. Wood, 14 Man. & Gr. E. 
 681.) " Surrender by operation of law is properly applied to cases 
 ■where the owner of a particular estate has been a party to some 
 41 
 
322 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 act, the validity of which he is by law afterward estopped from 
 disputing, and which would not be valid if his particular estate 
 continued to exist." {Lyon v. Rtxid, 13 Mees. & Wels. E. 285.) 
 The court in this case declared " that a demise of premises by the 
 reversioner to a stranger, with the consent of the lessee in possession, 
 will not amount to a surrender by operation of law." But this 
 proposition is contrary to some of the authorities above cited, and 
 is not generally acquiesced in. ( Vide, further, Bailey v. Z>eZa- 
 plaine, 1 Sandford's E. 5.) 
 
 It has been held that the mere canceling in fact of a lease is 
 not a surrender of a term thereby granted within the English stat- 
 ute of frauds, which requires such surrender to be by deed or note 
 in writing, or iy act or operation of law. Further, that a recital in 
 a second lease, that it was granted in part consideration of the 
 surrender of a prior lease of the same premises, was not a surren- 
 der by deed or note in writing of such prior lease, it not purporting 
 in the terms of it to be of itself a surrender or yielding up of the 
 interest. {Roe v. The Archbishop of York, 6 East's E. 86.) And 
 precisely the same doctrine was held in another case, wherein it 
 was said that " the question whether there had been a surrender 
 or not, ought not to be left to depend on loose parol evidence." 
 {Doe V. Thomas, 9 Barn. & Ores. E. 288.) So, also, the same rule 
 was laid down by the supreme court of the state of New York. 
 {Rowan v. Lytle, 11 Wend. E. 616. And vide Jackson v. Gardner, 
 8 Johns. E. 394.) 
 
 But, in a comparatively late case in England, the lessee under- 
 took to surrender the demised premises by delivering to the lessor 
 the key to the house, which the lessor accepted for the purpose of 
 ending the tenancy, and it was held that here was a surrender 
 of the term by act and operation of law ; and the rule was laid down 
 that " when there has been a change of possession, with the assent 
 of both parties, it amounts to a surrender of the term by act and 
 operation of law." {Dodd v. Acklow, 4 Man. & Gr. E. 672. And 
 •aide Orimman v. Legge, 8 Barn. & Ores. E. 324. Whitehead v. 
 Clifford, 5 Taunt. E. 518.) 
 
 In a late case in the supreme court of the state of New York, 
 the subject of surrendering a lease for years by operation of law 
 was considered. The facts were: On the 8th November, 1843, 
 the plaintiff leased a tavern stand of H., B. and P., for the term 
 of eight years, to commence on the 1st of April, 1844. On the 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 323 
 
 29th of February, 1844, the house was destroyed by fire, and the 
 plaintifi", who had before taken possession of the premises, there- 
 upon abandoned the same, and requested the lessors to cancel the 
 lease, insisting that it was verbally agreed between him and the 
 lessors, before the lease was drawn, that in case of the destruction 
 of the house by fire, the lease was thereby to be terminated. The 
 lessors refused to cancel the lease, and the premises were unoccu- 
 pied during the first quarter. In July, 1844, the lessors entered 
 into possession of the premises, and B. and P. conveyed their 
 interest therein to H., who erected a new building thereon, and 
 leased the same to the defendant for the term of three years. The 
 plaintiff made no, claim to the premises while the new building 
 was being erected, and waited until November, 1846, when he 
 brought an ejectment suit against the defendant to recover the 
 premises. The court held, that the taking possession of the prem- 
 ises by the lessors, the erection of the new building by one of 
 them and the lease thereof to the defendant, must be taken to 
 have been with the plaintiff's assent, and were inconsistent with 
 the continuance of the lease given to plaintiff, and that conse- 
 quently the lease to the plaintiff must be regarded as having been 
 surrendered by operation of law long before the commencement of 
 the action. ( Wood v. Walhridge, 19 Barb. E. 136.) 
 
 Of course the conveyance of the whole estate of the lessee to 
 the lessor, who continues to be the reversioner in fee, will operate 
 as a surrender of the lease. {Shepard v. Spaulding, 4 Mete. K. 
 416.) But a similar deed to a third person will not have the 
 same effect. {Sperry v. Sperry, 8 N. H. K. 477.) To render a 
 surrender good, the person who surrenders must be in possession, 
 and the person to whom the surrender is made must have a 
 greater estate, immediately in remainder or reversion, in which 
 the estate surrendered may merge. The possession necessary to 
 enable a party to execute a deed of surrender need not be an 
 actual pedis possessio ; but there must in all cases be a privity of 
 estate between the surrenderor and surrenderee. {Vide Spring- 
 stein V. Schermerlwrn, 12 Johns. K. 357. Jackson v. Sellich, 8 ib. 
 262. Jackson v. Howe, 14 ib. 405. Bradstreet v. Clark, 12 "Wend. 
 K. 602. Jackson v. Johnson, 5 Cow. E. 97.) This r^sum^, or sum- 
 mary of the authorities, upon the subject of the surrender of tenancy, 
 is perhaps all that is necessary for the purposes of a treatise upon the 
 action of ejectment, and nothing further will therefore be added. 
 
32i LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 CHAPTEE XVI. 
 
 THE ACTION OF EJECTMENT A3 BETWEEN LANDLORD AND TENANT 
 
 THE STATUTOEY POLICY OF THE SEVERAL STATES IN' RESPECT TO 
 LANDLORD AND TENANT, AND THE REMEDY BY EJECTMENT IN CASES 
 OF TENANCIES — LAWS OF NEW YORK AND THE NEW ENGLAND 
 STATES. 
 
 A BRIEF reference to the statutes of the several states applicable 
 to the action of ejectment between landlord and tenant, and to 
 the judicial decisions under those statutes, will close tlie considera- 
 tion of this branch of tlie subject. All tliat has been said in tlie 
 previous chapters in' respect to the action of ejectment between 
 landlord and tenant, has a general application, and maybe applied 
 to all of the states, except what has been explained to be local, or 
 which is rendered inapplicable by statute. 
 
 In the state of New York, if any lease be surrendered in order 
 to be renewed, and a new lease be made by the chief landlord, it 
 is provided that such new lease shall be good and valid to all 
 intents and purposes, without a surrender of all or any of the 
 under leases derived out of the original lease, so surrendered ; and 
 the chief landlord, his lessee, and the holder of such under leases, 
 shall enjoy all their rights and interests in the same manner and 
 to the same extent, as if the original lease had been still continued ; 
 and the chief landlord shall have the same remedy by entry upon 
 the demised premises, for the rents and duties reserved by such 
 new lease, so far as the same "do not exceed the rents and duties 
 reserved in the original lease so surrendered. (1 Stat, at Large, 
 
 695, § 2.) Notwithstanding the act of May 13, 1846, abolishing 
 distress for rent, the above provision of the statute remains in full 
 force, except so far simply as the remedy by distress is concerned. 
 '{Gonhey v. Hart, U JST. Y. R. 22.) 
 
 It is further provided by statute, that the attornment of a 
 tenant to a stranger, shall be absolutely void, and shall not, 
 in any wise, affect the possession of his landlord, unless it be 
 made with the tenant of the landlord. (1 Stat, at Large, 695, 
 
 696, § 3.) 
 
 Under this statute it has been held, that a tenant, whether by his 
 own direct act, or by a collusive judgment, has no right or power 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 325 
 
 to surrender the possession of his landlord to a stranger, against 
 his landlord's consent. {The People v. Mayor, etc., qf New Yorh, 
 19 How. Pr. E. 289, 293.) 
 
 The statute also provides that •whenever there is a tenancy at 
 will, or by sufferance created, by the tenant holding over his term, 
 or otherwise, the same may be terminated by the landlord giving 
 one month's notice in writing, to the tenant, requiring him to 
 remove therefrom. Such notice must be served by delivering the 
 Same to such tenant, or to some person of proper age, residing on 
 the premises ; or if the tenant cannot be found, and there be no 
 such person residing on the premises, such notice may be served 
 by affixing the same on a conspicuous part of the premises, where 
 it may be conveniently read. At the expiration of one month 
 froui the service of sucli notice, the landlord may re-enter, or main- 
 tain ejectment to remove such tenant, without any further or other 
 notice to quit. (1 Stat, at Large, 696, 697, §§ 7, 8, 9.) 
 
 At common law a tenancy at sufferance might be determined by 
 mere entry. No demand of possession, or other notice, was neces- 
 sary. {Jackson v. Parkhurst, 5 Johns. E. 128. Jackson v. Mc- 
 Leod, 12 ib. 182.) This was the law of the state of New York 
 until 1820, when there was an act passed requiring three months' 
 notice to terminate such tenancy, and in 1830 a thirty day notice 
 was substituted, as above stated. The object of this notice, as per 
 judicial authority, is to inform the tenant when his term expires, 
 in other words when he must quit the possession. {Rowan v. Lytle, 
 11 "Wend. E. 617, 619. Livingston v. Tanner, 12 Barb. E. 481, 
 484, 485.) 
 
 When premises are demised for and during the will and 
 pleasure of the lessor, this is held to be strictly a case of tenancy 
 at will, falling within the letter as well as the spirit of the statute ; 
 and that the same may be terminated by a month's notice to quit. 
 {Post V. Post, 14 Barb. E. 253.) 
 
 The statute also provides that the grantees of any demised lands, 
 the assignees of the lessor of any demise, and the personal represent-' 
 atives of the lessor, grantor or assignee, shall have the same reme- 
 dies by entry or action, as their grantor or lessor had, or might 
 have had, if the reversion had remained in such lessor or grantor ; 
 and the provision is extended as well to grants or leases in fee 
 reserving rents, as to leases for life and for years. (1 Stat, at Large, 
 698, §§ 23, 25.) 
 
326 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 This provision of the statute has been modified by a subsequent 
 statute, which provides that the act to enable grantors of rever- 
 sions to take advantage of the conditions to be performed by 
 lessees, shall not apply to deeds of conveyance in fee, made before 
 the ninth day of April, 1805, nor to such deeds to be made after 
 the passage of the modifying act. (Laws of 1860, ch. 396.) But 
 notwithstanding this act of 1860, an action of ejectment for non- 
 payment of rent may be brought by the assignee of the devisee of 
 the grantor, upon a lease made previous to 1805, where the plaintiff 
 had acquired the rights and remedies of the original lessor, previous 
 to the act of 1860. It seems the act of 1860 is to be limited to 
 cases of rights acquired under conveyances prior to 1805 and since 
 1860, by means of assignments or transfers made or executed since 
 the passage of the act of 1860. {Main v. Green, 32 Barb. E. 448.) 
 
 By the statutes of New York, it is also provided, that whenever 
 any half year's rent, or more, shall be in arrear from any tenant 
 to his landlord, and no sufiicient distress can be found on the 
 premises to satisfy the rent due, if the landlord has a subsisting 
 right by law to re-enter for the non-payment of such rent, he may 
 bring an action of ejectment for the recovery of the possession of 
 the demised premises ; and the service of the declaration therein 
 shall be deemed, and stand instead of, a demand of the rent in 
 arrear, and of a re-entry on the demised premises. (2 Stat, at 
 Large, 521, § 30.) 
 
 By the statute of May 13, 1846, distress for rent is abolished, but 
 it is provided, that, whenever the right of re-entry is reserved and 
 given to a grantor or lessor in any grant or lease in default of a 
 sufficiency of goods and chattels wherein to distrain for the satis- 
 faction of any rent due, such re-entry may be made at any time 
 after default in the payment of such rent, provided fifteen days' 
 previous notice of such intention to re-enter, in writing, be given 
 by such grantor or lessor, or his heirs or assigns, to the grantee or 
 lessee, his heirs, executors, administrators or assigns, notwithstand- 
 ing there may be a sufficiency of goods and chattels on the lands 
 granted or demised for the satisfaction thereof. The said notice 
 may be served personally on such grantor or lessor, or by leaving 
 it at his dwelling-house on the premises. (Laws of 1846, ch. 274.) 
 The court of appeals have decided that the act of May 13, 1846, 
 abolishing distress for rent, and providing for re-entry under the 
 circumstances named in the act, is constitutional, and applies to 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 327 
 
 leases in force when it was passed. So held in the ease of one of 
 the Yan Bensselaer leases executed in 1794, whereip it appeared 
 that in June,' 184:6, several years' rent being in arrear, the lessor 
 served the notice prescribed by the act ; and the plaintiff was per- 
 mitted to recover in ejectment. ( Van Rensselaer v. Snyder, 13 
 N. Y. 299 ; but vide Williams v. Patten, 2 Barb. E. 316.) The 
 supreme court of the state has held, that, under the statutes now 
 in force, the relation of landlord and tenant is made to exist as 
 between the grantor and grantee in a conveyance in fee of manor 
 lands, reserving rents; that a statute privity is created — enough 
 to pass a covenant to pay rent to each subsequent assignee of the 
 land conveyed ; and that the lessor's interest in such lease is an 
 entity assignable, with its remedies, as against assignees of the les- 
 sor, to be enforced by entry for non-payment of rent, or other for- 
 feiture ; that the lessor's interest, as well in his own hands as in 
 those of his assignees, is, pro hac viae, equivalent to a reversion, 
 and that the right of entry reserved in a lease in fee with the reme- 
 dies for enforcing it, are assignable by the lessor, so as to authorize 
 the assignor to bring ejectment in his own name. That the stat- 
 ute remedy of re-entry by ejectment has been applicable by and to 
 the parties to such leases, which remedy is not impaired by the 
 statute of 1846, abolishing the remedy by distress for rent. 
 
 Wright, J., gave a very long, lucid, and interesting opinion in 
 the case, and among other things said : " As the law stood prior to 
 - 1846, the landlord, for condition broken, might have proceeded at 
 common law, or under the statute, to re-enter and repossess him- 
 self of the premises. The tenant covenanted to pay rent, and 
 further stipulated, that if he broke the covenant the grantor might 
 re-enter. He also agreed that a sufficient distress should always 
 be found on the premises to satisfy any rent in arrear. The legis- 
 lature, in 1846, abolished the remedy by distress for rent, thus 
 practically rendering it unimportant whether sufficient distress 
 could be found on the premises or not. While taking away one 
 of the remedies of the grantor in a case where a right of re-entry 
 was reserved, another was substituted. Before, the grantor might 
 re-enter in case of a failure of the tenant to keep a sufficient dis- 
 tress on the premises to satisfy arrears of rent ; but by the statute 
 of 1846, he was authorized to re-enter at any time after default 
 made in the payment of such rent, provided he gave notice in writ- 
 ing to the grantor or lessor, hi& heirs, executors, administrators or 
 
328 LAW OF EJECTJIENT AND ADVERSE ENJOYIIENT. 
 
 assigns, fifteen days previously, of sncli intention to i-e-enter, not- 
 withstanding there might be a sufficiency of goods and chattels on 
 the lands granted or demised, for the satisfaction of rent due." 
 {Van Rensselaer v. Smith,.^1. Barb. R. 104, 177.) As the law 
 now stands, no notice of an intention to re-enter is necessary, except 
 where there is a suificiency of goods and chattels on the premises 
 for the satisfaction of the rent. (The Mayor, etc., of the City of 
 New York v. Campbell, 18 Barb. K. 156.) 
 
 The executors of one who has granted land in fee, subject to an 
 annual rent cannot maintain ejectment for the non-payment of 
 such rent. Tlie rule, however, is otherwise of a lease of a term for 
 years. For this, ejectment may be sustained by the executors, it 
 being; a chattel interest. Neither can a devisee of one who has 
 granted land in fee subject to rent, maintain ejectment for rent in 
 arrear which became payable in the lifetime of the testator, but 
 only for such as has accrued since the will took effect in his favor. 
 ( Yan Rensselaer v. Hays, 5 Denio's E.. 477.) 
 
 When the action of ejectment is brought to recover the posses- 
 sion of the demised premises for non-payment of rent, the statute 
 provides that at any time before judgment in the cause, the defend- 
 ant may eitlier tender to the landlord, or bring into the court 
 where the suit shall be pending, all the rent in arrear at the time 
 of such payment, and all costs and charges incurred by the lessor; 
 and in such case, all further proceedings in the cause ai-e to 
 cease. 
 
 And the statute further provides, that at any time within six 
 months after possession of tlie demised premises shall have been 
 taken by the landlord, under any execution issued upon a judg- 
 ment obtained by him, in any such action of ejectment, the lessee 
 of such demised premises, his assigns or personal representatives, 
 may pay or tender to the lessor, his personal representatives or 
 attorney, or into the court where the suit shall be pending, all the 
 rent in arrear at the time of such payment, and all costs and 
 charges incurred by the lessor ; and in such case, all further pro- 
 ceedings in the said cause shall cease, and such premises shall be 
 restored to the lessor, who shall hold and enjoy the demised prem- 
 ises, without any new lease thereof, according to the terms of the 
 original demise. But in case the parties interested do not avail 
 themselves of the benefit of this provision within the six months 
 specified, then the lessor or landlord shall from thenceforth hold 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 329 
 
 the said demised premises free and discharged from such lease or 
 demise. (2 Stat, at Large, 521, 522, §§32, 33, 34.) 
 
 There is another provision of the statute of New York, to the 
 effect that whenever the lessee of any dwelling-house shall be con- 
 victed of a misdemeanor in keeping the same as a bawdy house, 
 the lease or agreement for the letting of such house shall there- 
 upon become void ; and the landlord may enter upon the premises 
 so let, and shall have the same remedies to recover possession 
 thereof as are given by law in case of a tenant holding over after 
 the expiration of his lease. (2 Stat, at Large, 725, § 29.) 
 
 Tiiere are other provisions in respect to the execution of leases, 
 and the proceedings between landlord and tenant, but as they do 
 not have any particular bearing upon the action of ejectment, they 
 are omitted. 
 
 Under tlie statutes of New York, a tenant for life or lives, who 
 continues in possession, without the consent of the owner, after the 
 determination of the life estate, is not entitled to notice to quit. 
 Tiie statute declares him a trespasser, and ejectment witliout pre^- 
 vious notice will lie. A tenant at sufferance, within the moaning 
 of the statute requiring a month's notice to quit, is not created by 
 such holding over. {Livingfiton v. Tanner, 14 N. Y. K. 64.) 
 
 Where a grant in fee, reserving rent, contains the express con- 
 dition, that if rent shall be unpaid at the time appointed for the 
 payment thereof, then the grant and the estate demised are to be 
 void, determine and cease, and, thereupon, it shall be lawful for 
 the grantor, his heirs and assigns, to re-enter, etc., it is held not to 
 be necessary for the plaintiff in the ejectment brought for a breach 
 of such condition, to prove a demand of rent ; for the reason that 
 the common law rule, requiring such demand on the premises, on 
 the day, and for the precise amount, is abrogated by the statute, 
 which makes the commencement of the action of ejectment stand 
 in place of such demand; and this statute applies as well to a 
 grant in fee reserving rent, as to a lease for years, or other term 
 less than a fee. 
 
 It was further held, that the statute of 1846, requiring fifteen 
 days' notice of an intention to re-enter, does not apply to a grant 
 in which the right to re-enter arises on default of payment by 
 the tenant, but only when such right depends on the sufficiency 
 of goods whereon to distrain. {Hosf&rd v. Ballard, 39 JN". Y. 
 E. 147.) 
 
 42 
 
330 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The courts hold, that the right to re-enter, which at common 
 law is confined to the grantor and his heirs, is m^ade assignable 
 with the rent by the statute. That the statute affects only the 
 remedy, and that there is no constitutional objection against its 
 application to precedent conveyances, and, further, that this statute 
 giving the remedy of ejectment in place of demand and re-entry, 
 are not limited to rents-service, but are applicable to all cases 
 where there was a right to re-enter at common law ; and that an 
 annual payment reserved upon the conveyance of land was, at 
 common law, and independent of tenure or a reversion in the gran- 
 tor, rent, for which the right to re-enter existed when provided for 
 by the deed. The case was decided before the passage of the act 
 of 1860, before referred to, and perhaps the doctrine of the case is 
 somewhat modified by that act. ( Van Rensselaer v. Ball, 19 N. 
 Y. 100.) 
 
 The court of appeals, in a still later case, have held, that the 
 statute abolishing distress for rent (ch. 274 of 1846, § 3), recognizes 
 the assignable quality of a condition of re-entry for non-payment 
 of rent reserved in a grant in fee, and gives to an assignee of the 
 rent the same right to maintain ejectment as was conferred by 
 chapter 98 of 1805, repealed in 1860 (ch. 396), as to grants made 
 prior to its passage. ( Yan Rensselaer v. SUngerland, 26 N. Y. 580.) 
 
 The remedies which the grantor or lessor may pursue in the 
 event of the non-payment of the rent, are (1), covenant, to recover 
 the rent itself; and (2), ejectment to recover the premises, for the 
 non-payment of the rent. This latter remedy is but a mode of 
 enforcing the right of re-entry ; and the authority to preserve it 
 depends in part upon the provisions of the contract, and in part 
 upon the provisions of the common and statute law. It is founded 
 upon the provision of the contract which gives the party the right 
 to re-enter the premises in the event of the want of a suiScient 
 distress on the premises to satisfy the rent ; and where a right of 
 re-entry for non-payment of rent is not reserved, the landlord can- 
 not maintain ejectment for non-payment. {Tyler v. Heidorn, 46 
 Barb. E. 439. De Lancey v. Garney, 9 ib. 9.) 
 
 An under-lease, by the lessor of premises, for the whole unex- 
 pired term, reserving the right to re-enter, is held to be a sub-lease, 
 and not an assignment, and the party giving the sub-lease can 
 re-enter for a breach of the condition, although there is no rever- 
 sion remaining in him. [The Feople v. Robertson, 39 Barb. K. 9. 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 331 
 
 Linden v. Hepburn, 3 Sandf. 660. And vide Doe v. JBatemam,, 
 2 Bam. & Aid. E. 160.) 
 
 The notice served by the landlord upon a tenant at will, to ter- 
 minate his tenancy, takes effect in thirty days after the service; 
 and the specification therein of a day on which the time will 
 expire, which will be less than thirty days from the time of service, 
 will not vitiate the notice. {The People v. Schachno, 48 Barb. E.. 
 551.) The notice need not specify the time within which the prem- 
 ises must be surrendered. It is sufficient if the tenant has thirty 
 days' notice in writing of the intention of the landlord to termi- 
 nate the tenancy, before the action of ejectment is brought. 
 {Barnes v. Bryant, 31 IST. Y. 453.) 
 
 The question whether a tenant, from year to year, must now 
 have six months' notice to quit, to authorize the landlord to turn 
 him out of possession by action of ejectment, seems to be somewhat 
 in doubt. The probability is, however, that no notice is required, 
 when the tenancy from year to year is created by the tenant hold- 
 ing over after the expiration of a valid lease for one or more years. 
 {Path V. Cade, 19 How. Pr. E. 29.) 
 
 In the state of Maine, a tenancy at will may be terminated by 
 a written notice to quit, served on the tenant thirty days before 
 the time named for its termination ; but if no rent is due when a 
 rent is payable, it cannot be terminated, except at the option of 
 the tenant, until rent shall become due. (E. S. 1857, ch. 94, § 2.) 
 
 The above provision of the statute relates only to the process 
 of forcible entry and detainer, and to the notices required for its 
 maintenance. There does not seem to be any statute requiring 
 notice in writing for the termination of a tenancy at will for any 
 other purpose ; and the. existing law therefore is, that tenancies at 
 will are determinable, in Maine, at the will of either party, and 
 without notice. {Gordon v. Oilman, 48 Maine E. 473.) 
 
 A tenancy at will is determined by the death of the lessor, and 
 the lessee thereupon becomes tenant at sufferance, and is not entitled 
 to notice to quit. In such a case, and in all cases of a tenant at 
 sufferance, the owner of the fee may enter at any time and put an 
 end to the holding, or he may maintain his action of ejectment 
 without notice. {Reed v. Reed, 48 Maine E. 388.) 
 
 The statutes of Maine expressly provide, that if any tenant in 
 dower, by curtesy, for life or for years, commits or suffers any 
 waste on the premises, the person having the next immediate 
 
332 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 estate of inheritance may recover tlie place wasted and the dam- 
 ages done to the premises, in an action of -waste against him, 
 (E. S. ch. 95, § 1.) 
 
 There is also a provision of the statute declaring, that where the 
 tenant of a dwelling-house is convicted of keeping it as a house 
 of ill-fame, the lease or contract by which he occupies it may, at 
 the option of the landlord, be deemed void, and lie may have the 
 same remedy to recover possession as against a tenant holding over 
 after iiis term expires. (Tl. S. ch. 124, § 12.) 
 
 In tlie state of New Hampshire, any lessor or owner of lands or 
 tenements may at any time determine any lease at will or tenancy 
 at sufferance, by giving the tenant'or occupant a notice in writing 
 to quit the same at a day therein named. Seven days' notice is 
 sufficient, where the tenant or occupant neglects or refuses to pay 
 the rent due and in arrear upon demand ; or if the lessee violates 
 the condition of any written lease ; or if the lessee holds over after 
 the expiration of a definite written lease. If the rent is payable 
 more frequently than once in three months, Avhether such rent is 
 due or not due, thirty days' notice is declared to be sufficient ; 
 and three months' notice is declared to be sufficient in all 
 cases. 
 
 Every tenancy or occupancy is deemed to be at will, and the 
 rent payable upon demand, unless a different contract is shown. 
 An}' lessee may terminate his lease by notice in writing, in the 
 same manner as the lessor, and such notice will have the same 
 effect for all purposes as a notice by the lessor to the lessee. The 
 owner or lessor of any tenement or real estate may recover posses- 
 sion thereof against any lessee or occupant holding the same with- 
 out right after notice to quit the same, by proceedings before an 
 inferior court; or he may pursue his legal remedy at common 
 law. (Gen. Stat. 1867, ch., 231, §§ 1, 7, 21.) The statute further 
 declares that M'hen the estate occupied by a tenant at will or 
 sufferance is conveyed by the landlord, his grantor shall have 
 the rights and remedies which the grantor would have had, if the 
 estate had not been conveyed. (Gen. Stat. ch. 231, § 22.) The 
 common law in relation to tenancies at will, from j'ear to yeai', 
 and from month to month, is in force in the state of New Hamp- 
 shire, except as it is modified by the Eevised Statutes, and under 
 the provisions of the Eevised Statutes, every tenancy at will will 
 be presumed to be at will strictly, unless the contrary is shown. 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 333 
 
 {Currier v. Perley, 24 N. H. E. 219, 229. Uazeltine v. Collurn, 
 31 ib. 466.) 
 
 A tenancy at will from year to year, may be terminated by 
 assent of the lessor and lessee, at any time, without notice to quit, 
 and such tenancy may be terminated by any wrongful act, either 
 of the lessor or of the lessee, which would at common law deter- 
 mine an estate at will strictly, if the other party chooses to take 
 advantage of it. {Currier v. Perley, supra.) 
 
 A tenant who holds over after the expiration of a written lease, 
 without the assent of the landlord, becomes a tenant at sufferance ; 
 but if the lessor or owner, by the acceptance of rent, or any other 
 act, indicates his assent to tiie continuance of tiie tenancy, the 
 tenant becomes a tenant at will, upon the same tsrms, so far as 
 they are applicable, of his previous lease. {Russell v. Fdbyan, 34 
 N". H. E. 218.) If no such assent appears, tlie tenant is entitled 
 to no notice to quit, except where the landlord desires to avail iiim- 
 self of the statute remedy. {Russell v. Fabyan, supra. Hazelihw 
 V. Colburn, 31 W. H. E. 472. But vide Ciirrier v. Perley, 
 supra.) 
 
 The common law rule in respect to notices to quit still prevails 
 in l^ew Hampshire, with only two changes made by the statute. 
 The length of time required to make a notice effectual is shortened. 
 Three months' notice is madcsiufficient in all cases (instead of lialf 
 a year), and if the rent is payable more frequently than once in 
 three months, thirty days' notice is made sufficient ; and if the 
 tenant refuses or neglects to pay the rent due; and in arrear, seven 
 days' notice is made sufficient. The notice to quit may be made 
 to quit at any day therein named, instead of the precise termina- 
 tion of a year, quarter, month, etc. In other respects the legisla- 
 ture of the state has not seen fit to change the common law rules. 
 These changes are regarded as equally applicable, whether the 
 question arises in an action at common law or under the statute ; 
 although it is intimated by the court, that in the- latter case, to 
 render tlie notice effectual, it must be in writing, which is not 
 reqviired in any common law proceeding. {Haseltine v. Colburn, 
 supra) In respect to the demand for the rent, the courts hold 
 that whatever terras may be used by the landlord to his tenant, 
 tliere will be no demand of the rent, if it is understood that no 
 demand is intended, or if the landlord intends none. {Norris v. 
 Morrill, 43 N. H. E. 213.) And it seems that a demand of 
 
334: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 rent may be waived expressly or by tbe mutual consent of the 
 parties. A mutual understanding that it is waived, constitutes a 
 waiver ; and long delay to give notice to quit, and a subsequent 
 acceptance of rent, are competent evidence, as tending to show 
 such an understanding. And so if the parties treated the tenancy 
 as existing, after the demand, in all respects as before, the same 
 will tend to show the understanding of the parties that such 
 demand is waived. {JVo7'r{s v. Morrill, 40 N. H. E. 395.) 
 
 In the. state of Vermont tenants may be removed in certain 
 cases by a summary process by statute, but in most respects the 
 action of ejectment, as between landlord and tenant, in that state, 
 seems to be governed by the rules of the common law. Notice to 
 quit, in case of tenancy from year to year, must be given six calen- 
 dar months before the year expires, and must point to the time 
 when the tenant must quit, or ejectment cannot be maintained. 
 (Hemchett v. Whitney, 1 Vt. E. 311.) In this respect the common 
 law of England is adopted in that state. But, if the tenant disclaim 
 his tenancy, or deny the title of his landlord, or, which is the 
 same thing, requires him to prove those points, the courts hold that 
 he cannot insist on the want of notice to quit, although it should 
 appear in the course of the trial that he was a tenant from year .to 
 year to the plaintiff. {Tuttle v. Reynolds, 1 Yt. E. 80. CatUn v. 
 Woishburne, 3 ib. 25.) 
 
 A tenancy by a parol lease for a term of years, which, under the 
 Eevised Statutes of Vermont, is at first an estate at will only, by 
 the continuance of possession and payment of rent by the lessee 
 for several years, say three years, becomes a tenancy from year to 
 year. {Barlow v. Waimoright, 22 Vt. E. 88.) And in case of a 
 tenancy from year to year, the tenant cannot quit at pleasure, 
 without notice, and deprive the landlord of accruing rent. Neither 
 can the tenant in such a case be ejected without a notice to qiiit 
 as at common law. {Hall v. Wadsworth, 28 Vt. E. 410.) 
 
 Where to a clause of re-entry in a lease, for non-payment of rent, 
 there is attached a condition that the landlord shall, before enter- 
 ing, give to the tenant in arrear thirty days' notice, the landlord 
 has no right to re-enter, unless he give such notice. The right to 
 re-enter for non-payment of rent is not incident to the estate of 
 the lessor at common law, but must be reserved by deed, and all 
 the conditions or stipulations annexed thereto must be strictly fol- 
 lowed. {Smith V. Blaisdell, IT Vt. E. 199.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 333 
 
 By the statutes of Massachusetts, if a-tcnant or occupant, under 
 a lawful title, of any building or tenement, uses such premises, or 
 any part thereof, for prostitution, lewdness, or iHegal gaming, or 
 for the illegal keeping or sale of intoxicating liquors, such use will 
 annul and make void the lease or other title under which he holds, 
 and, without any act of the owner, will cause the right of pos- 
 session to revert and vest in such owner, when such owner may 
 immediately bring his action to recover the possession of the 
 premises. (Gen. Stat. 1860, ch. 87, § 8.) 
 
 Upon neglect or refusal to pay the rent due according to the 
 terms of any written lease, fourteen days' notice to quit, given in 
 writing by the landlord, is made sufficient to determine tlie lease. 
 And estates at will may be determined by either party, by tliree 
 months' notice in writing for that purpose given to the other 
 party; and where the rent reserved is payable at periods of -less 
 than'three months, the time of such notice will be sufficient if it 
 is equal to tlie interval between the days of payment ; and in all 
 cases of neglect or refusal to pay the rent due on a lease at will, 
 fourteen days' notice to quit, given in writing by the landlord to 
 the tenant, is sufficient to determine the lease. (Gen. Stat. ch. 90, 
 §§ 30, 31.) 
 
 A tenant of real estate, who enters under a parol demise from A, 
 and holds over, cannot defeat a writ of entry brought by A, to re- 
 cover possession of the demised premises, by setting up a conveyance 
 of the premises, made by himself to B after the demise, and a sub- 
 sequent holding by him under B. {Goii v. Arnold, 12 Mete. R. 39.) 
 
 It has been held, that a lease of a house, although under seal, 
 may be determined by the acceptance of the key by tlic lessor, 
 and his putting another tenant in possession, {liandall v. liich, 
 11 Mass. R. 493.) 
 
 "Where there is a demise for a fixed term, of coursO no notice to 
 quit is necessary on the part of the lessor ; the lessee is bound to 
 quit and deliver up the premises, and if he continues to hold over 
 he is a wrong-doer, and an action may be brought to regain tlie 
 possession of the premises held by the lessee. {Dorrell v. Johnson, 
 17 Pick. E. 266.) 
 
 An assignment of his estate by a tenant at will terminates the 
 tenancy. {Cooper v. Adams, 6 Gush. R. 87.) And it is held, that 
 the statutes concerning the termination of estates at will, do not 
 apply to cases in which the tenancy is terminated, according to the 
 
336 XiAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 principles of common law,- by the consent of both parties. {Cooper 
 V. Adams, 6 Gush. R. 287.) 
 
 The notice required by the statute for the determination of an 
 estate at will, where the rent reserved is payable at periods of less 
 than three months, must not only be as long as the period between 
 the days of payment, but must terminate at the expiration of such 
 an interval. {Prescott v. Elm, 1 Gush. R. 346. Currier v. Barker, 
 2 Gray's R. 224.) And in order to terminate a lease at will by a 
 notice under the statute, where the rent is payable monthly, a 
 month's notice must be given, which must either specify the exact 
 day on which the next month expires, or state generally that the 
 tenancy will be terminated in one month from the next rent day. 
 {Sanford v. Harvey, 11 Gush. R. 93. But vide Granger v. Bromn, 
 lb. 191.) 
 
 Wiien fourteen days' notice is necessary to determine a tenancy, 
 a notice to leave " forthwith," not specifying a day certain, and not 
 stating any cause for giving the notice, is insufficient ; although 
 sucli notice is in fact served fourteen days before the action is 
 brought. {Elliott v. Stone, 12 Gush. R. 174.) And a notice to 
 quit and deliver up premises held under an oral lease, which does 
 not state or describe the cause for which it is given, nor the time 
 when the tenant is required to quit, is insufficient to determine the 
 lease. {Currier v. Barker, 2 Gray's R. 224. And vide Steward 
 v. Harding, lb. 335.) But a notice to quit, seasonably given by a 
 landlord to his tenant, and correctly stating, either in general 
 terms or by a specific designation of day and date, the time when 
 the tenant should quit the premises, is sufficient, although it do 
 not state the cause of giving it. {Granger v. Brown, 11 Gush. R. 
 191.) The estate of a tenant at will, who occupies under an 
 agreement to pay rent monthly, on the first day of each month, 
 may be determined by a written notice, given on the first day of 
 a month, and directing him to quit and deliver up the premises on 
 the first day of the next month although the monthly terms began on 
 the first day of each month. ( WaUcer v. Sharpe, 14 Allen's R. 43.) 
 
 If a notice to quit and deliver up, in seven days from the service 
 thereof, premises held under a tenancy at will, with weekly pay- 
 ments of rent, is served by leaving the same at the tenant's houso 
 upon a ]-ent day, and he is absent at the time, and does not return 
 for some days, the tenancy will not thereby be determined upon 
 the next rent day. {Hultain v. Munigle, 6 Allen's R. 220.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 337 
 
 In tlie state of Ehode Island the statute declares that leases of 
 premises used by the tenant as a house of ill-fame, resorted to for 
 prostitution, lewdness, or for illegal gaming, or for a grog-shop, 
 tippling-shop, or for the illegal sale or keeping of intoxicating 
 liquors, or where intemperate, idle, dissolute, noisy or disorderly 
 persons are in the habit of resorting, shall be void, and the owner 
 may thei-eupon recover possession of such demised premises in the 
 same manner as though the tenant was holding over after the 
 expiration of his term. (Revised Statutes, ch. Y3, sees. 1, 4, and 
 eh. 216, sec. 7.) 
 
 The statute further provides that tenants of lands or tenements 
 at will or by sufferance, shall quit upon notice in writing from the 
 lessor or ownei-, at the day named therein. Tenants by parol, of 
 house, tenement or messuage, or of farm and farming lands from 
 year to year, must quit upon notice in writing from the lessor or 
 owner, given at least three months prior to the expiring of the 
 occupation year, and tenants by parol of the same species of real 
 property, for any term less than a year, must quit upon notice in 
 writing from the lessor or owner, given at least half the period of 
 the term, not exceeding in any case three months prior to the 
 expiration of the same, at any return thereof. 
 
 A tenant may terminate leases at will in the same manner and 
 on the same terms as are prescribed for the lessor or owner. The 
 time named in a definite written lease will be the time of the ter- 
 mination thereof for all purposes; and if no time is named, then 
 the same is deemed a letting from year to year, and must be ter- 
 minated by the like notice to quit, as in case of letting by parol. 
 If rent is in arrear for the period of six months after demand 
 made of the same of the tenant or his assigns by the lessor or per- 
 son entitled to the reversion, the landlord or reversioner may 
 re-enter and re-possess himself of the lands or premises demised, 
 and on the termination of any lease or tenancy in the manner pre- 
 scribed, the lessor or owner of the lands demised may recover the 
 same by the ordinary process of ejectment. (R. S. ch. 205.) 
 
 In the state of Connecticut it is provided by statute, that when- 
 ever the lessee or tenant of any house, i-oom, or tenement, shall be 
 convicted of keeping a house of ill-fame, resorted to for the pur- 
 poses of prostitution, or lewdness, in such house, room, or tene- 
 ment, or of a violation therein of any law against gaming, the 
 lease or contract for letting said house, room, or tenement, shall 
 43 
 
338 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 thereupon be void ; and the lessor may recover possession of the 
 premises by due process of law, and no notice to quit possession is 
 required. 
 
 The statute further declares, that, whenever a lease of any 
 lands, dwelling-house, or other building, or of any apartments 
 in such house or other building, in writing, shall contain any 
 agreement of the parties thereto, whereby notice to quit posses- 
 sion is waived by the lessor, the notice prescribed to be given in 
 certain other cases need not be given. The provision for terminat- 
 ing a lease by notice, is as follows : Whenever a lease of any land, 
 dwelling-house, or other building, whether the same be in writing 
 or by parol, shall terminate by lapse of time, or by reason of any 
 express stipulation thereof, and the owner or lessor shall desire to 
 obtain possession of the same at the termination of the lease, or at 
 any subsequent time, he must give notice to the lessee to quit 
 possession of said land, house, building or apartment, at least thirty 
 days before the termination of the lease, or before the time when 
 the lessee shall be required to quit possession ; which notice must 
 be in writing, and the form of it is prescribed by the statute. 
 (General Stat. 1866, tit. 1, ch. 15, §§ 350, 356, 358.) The statute 
 of summary process of Connecticut recognizes no other termina- 
 tion of leases than such as is effected by force of the contract itself. 
 It supersedes none of the common law remedies of the landlord, 
 except in respect of the notice to quit, and the power of proce- 
 dure by action, so that the question whether the tenant's rights 
 have ceased, must be settled according to a common law interpreta- 
 tion of the lease. The statutes with regard to the recovery of 
 leased premises, except in the specific remedy they provide, and the 
 notice to quit prescribed, do not dispense with the requirements 
 of the common law on the subject. (Boxoman v. Foot, 29 Conn. R. 
 331.) It has been held, that a lease, to hold from the first day of 
 April from year to year, so long as both lessor and lessee should 
 agree, is not necessarily a lease for more than one year. Where a 
 lease is made to run from the first day of April for one year, the 
 courts hold, that the first day of April is not to be excluded, but 
 the term commences on that day ; and the lease expires on the, 
 31st day of March of the year following, although the lessee has 
 the right to remain in possession all of that day ; he has no right 
 to remain longer. A notice to quit on the 31st day of March, is 
 therefore good. {Fox v. Nathans, 32 Conn, R. 348.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 83$) 
 
 ' Although, by the express provisions of the English statute, 29 
 Oar. 11, a parol lease, for a period not exceeding three years, is 
 valid, yet a parol executory lease, though for a shorter time tlian 
 three years, is entirely void. But under the statutes of Connecti- 
 cut, a parol lease, whether for one year, or for a longer, or shorter 
 period than one year, is void. When, however, the lessee takes 
 possession under a parol lease, he becomes a tenant at will, but, by 
 implication, his estate is converted into a tenancy from year to 
 year. But it is held that this rule is not to be so applied, as 
 entirely to exclude from consideration every thing that was paid 
 by tlie landlord and tenant, at the time of the letting, as to the 
 proper rent, or proper time for leaving the premises. The Eng- 
 lish rule, under which a tenant from year to year is entitled to six 
 months' notice to quit, before the landlord can bring ejectment 
 against him, has been superseded by the Connecticut statute, which 
 gives to the lessor, after thirty daj^s' notice, a summary process, 
 where the lessee holds over his term. {Larkin v. Avery, 23 
 Conn. R. 304.) 
 
 The statutes of the ISTew England states in respect to landlord 
 and tenant, more generally relate to the manner of terminating 
 tenancies for uncertain periods by notice to quit, and a summary 
 process by which the landlord can regaifl possession of th4 demised 
 premises after the expiration of the term. But probably in none 
 of the states, is the landlord confined to the summary process pro- 
 vided by the statutes, to re-possess himself of his premises in case 
 of a holding over by the tenant. He may doubtless resort to his 
 action to recover possession of his premises in the same cases in 
 ■which he may institute summary proceedings, and in some cases 
 he can only regain possession by proceeding by actionl. 
 
 CHAPTEE XVII. 
 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT 
 
 THE STATUTORY POLICY OE THE SEVERAL STATES IN RESPECT TO 
 LANDLORD AND TENANT, AND THE REMEDY BY EJECTMENT IN CASES 
 OF TENANCIES — LAWS OF THE MIDDLE AND WESTERN STATES, 
 EXCEPTING NEW YORK. « 
 
 By the statutes of New Jersey, in all cases between landlord 
 and tenant, as often as it shall happen that one half year's rent 
 
340 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 shall be in arrear, and the landlord or lessor to whom the same 
 is due, has right by law to re-enter for the non-payment thereof, 
 such landlord or lessor may, without any formal demand or re- 
 entry, serve a declaration in ejectment for the recovery of the 
 demised premises, or in case the same cannot be legally served, 
 or no tenant be in actual possession of the premises, then to affix 
 the same upon the door of any demised inessauge, or in case such 
 ejectment shall not be for the recovery of any demised messauge, 
 then upon some notorious place on the lands, tenements or heredit- 
 aments comprised in such declaration in ejectment, and such 
 affixing will be deemed legal service thereof; which service, or 
 affixing such declaration in ejectment, will stand in the place and 
 stead of a demand and re-entry ; and in case of judgment against 
 the casual ejector, or nonsuit for not confessing lease, entry and 
 ouster, it shall be made to appear to the court where the suit is 
 pending, by affidavit, or be proved upon the trial, in case the 
 defendant appears, that half a year's rent was due before a declara- 
 tion was served, and that no sufficient distress was to be found on 
 the demised premises, countervailing the arrears then due, and 
 that the lessor or lessees in ejectment had power to re-enter, then 
 and in every such case the lessor or lessees in ejectment may have 
 judgment and execution in the same manner as if the rent in arrear 
 had been legally demanded and re-entry made ; and in case the 
 lessor or lessees, his, her or their assignee or assignees, or other 
 person or persons claiming or deriving title under the said lease, 
 shall suffer judgment on such ejectment and execution to be 
 executed thereon, without paying the rent and arrears, together 
 with full costs, and without filing any bill or bills for relief in 
 equity, within six calendar months ^fter such execution executed, 
 then, and in such case, the said lessee or lessees, his, her or their 
 assignee or assigns, and other person or persons claiming or deriv- 
 ing title under the said lease, will be barred and foreclosed from 
 all relief or remedy in law or equity, other than by writ of error 
 for reversal of such judgment, in case the same shall be erroneous, 
 and the said landlord or lessor will from thenceforth hold the same 
 demised premises discharged from such lease ; and if no such 
 ejectment verdict shall pass for the defendant or defendants, or the 
 plaintiff or plaintiffs shall be nonsuited therein, except for the 
 defendant or defendants not confessing lease, entry and ouster, 
 then, and in every such case, the defendant or defendants may 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 34rl 
 
 have and recover his, her or their full costs ; provided that such 
 provisions of the statute shall not extend to bar the right of any 
 mortgagee or mortgagees of such lease, or any part thereof, who 
 shall not be in possession, so as such mortgagee or mortgagees 
 shall and do within six calendar months after such judgment 
 obtained and execution executed, pay all rent or arrears, and all 
 costs and damages sustained by such lessor, or person or persons 
 entitled to the remainder or reversion, as aforesaid, and perform 
 all covenants and agreements which, on the part and behalf of the 
 first lessee or lessees, are and onght to be performed. 
 
 It is further provided by the statute, that in case the said lessee 
 or lessees, his, her or their assign or assigns, or other person or 
 persons, claiming any right, title or interest, in law or equity, of, in 
 or to the said lease, shall, within the time aforesaid, file one or 
 more bill or bills for relief, in any court of equity, such person 
 or persons shall not have or continue any injunction against the 
 proceedings at law on such ejectment, unless he, she or they do or 
 shall, within twenty days next after a full and perfect answer shall 
 be filed, by the lessor or lessors of the plaintiff in such ejectment, 
 bring into court and lodge with the proper officer, such sum and 
 sums of money, as the lessor or lessors of the plaintiff in the said 
 ejectment shall, in his, her or their answer, swear to be due and 
 in arrear, over and above all just allowances, and above the costs 
 taxed in the said suit, there to remain until the hearing of the 
 cause, or to be paid out to the lessor or landlord on good security, 
 subject to the decree of the court ; and in case such bill or bills 
 shall be filed within the time aforesaid, and after the execution is 
 executed, the lessor or lessors of the plaintiff shall be accountable 
 only for so much and no more as he, she or they shall really and 
 bona fide, without fraud, deceit or willful neglect, make of the 
 demised premises, from the time of his her or their entering into 
 the actual possession thereof; and if what shall be so made by the 
 lessor or lessors of the plaintiff happen to be less than the rent 
 reserved in the said lease, then the said lessee or lessees, his, her or 
 their assignee or assignees, before he, she or they shall be restored 
 to his, her or their possession or possessions, shall pay such lessor 
 or lessors, landlord or landlords, what the money, so by them 
 respectively made, fell short of the reserved, rent for the time such 
 lessor or lessors of the plaiiitiff, or landlord, or landlords, held the 
 said lands. 
 
34:2 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 And it is further provided, that, if the tenant or tenants, his, her 
 or their assignee or assignees, do or shall, at any time before the 
 trial in such ejectment, pay or tender to the lessor or landlord, his 
 or her executors or administrators, or his, her or their attorney in 
 that cause, or pay into the court where the same cause is or shall be 
 depending, all rent and arrears, together with the costs, then and 
 in such case, all further proceedings on such ejectment shall cease 
 and be discontinued ; and if such lessee or lessees, his, her or their 
 executors, administrators or assigns, shall, upon such bill filed as 
 aforesaid, be relieved in equity, he, she or they shall have, hold or 
 enjoy the demised lands, according to the lease thereof made, 
 without any new lease to be thereof made to him, her or them. 
 The statute further provides that every tenant to whom any declar- 
 ation in ejectment shall be delivered on any lands, tenements or 
 hereditaments, shall forthwith give notice to his landlord or land- 
 lords, or his, her or their bailiff, receiver, agent or lawful attorney, 
 under the penalty of forfeiting the value of three years' improved or 
 rack-rent of the premises so demised or holden in the possession of 
 such tenant, to the person of whom he or she held, to be recovered 
 by action of debt, to be brought in any court of record within the 
 state of New Jersey. And it is made lawful for the court where 
 such ejectment is brought to suffer the landlord or landlords, to 
 make himself, herself or themselves defendant or defendants by 
 joining with the tenant or tenants, to whom such declaration in 
 ejectment shall be delivered, in case he, she or they shall appear ; 
 but in case such tenant or tenants shall refuse or neglect to appear, 
 judgment must be signed against the casual ejector for want of 
 such appearance ; but if the landlord or landlords of the whole or 
 any part of the lands, tenements or hereditaments, for which such 
 ejectment was brought, shall desire to appear by himself, herself 
 or themselves, and consent to enter into the like rnle by the 
 course of the court the tenant in possession, in case he or she had 
 appeared, ought to have done, then the court where such eject- 
 ment shall be brought, shall and may permit such landlord or 
 landlords so to do, or order a stay of execution upon such judg- 
 ment against the casual ejector until they shall make further order 
 therein. 
 
 In all cases where any tenant is, or may be entitled by law to 
 notice to quit the premises by him holden, in order to determine 
 Lis tenancy, three months' notice to quit, as aforesaid, is deemed 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 343 
 
 and taken to be sufficient. (Elmer's Digest, 1855, pp. 419, 420, 
 421, §§ 9, 10, 11, 15, 16, 17.) 
 
 It will be observed that the statute of New Jersey concerning 
 landlords and tenants is substantially like the English statute 
 upon the same subject. The remaining provisions of the New 
 Jersey statute, pertain to summary proceedings before justices to 
 regain possession' of demised premises, and are not necessary to be 
 repeated here. The courts of New Jersey hold, that if the tenant 
 deny the holding altogether or forbids a distress, and provides the 
 means of resisting it, and refuses to pay the rent, the landlord will 
 not be Required to make a regular demand at the precise time, and 
 precisely conformable to the terms of the lease. They further 
 hold that the assignee of the rent clause may take advantage 
 of the clause of re-entry in a lease. {Farley v. Craig, 6 Halst. 
 E. 262.) 
 
 Where a tenant whose term has expired by efflux of time, instead 
 of quitting the premises as he ought to do, remains in possession, 
 holding over, he is a wrong doer, and may be treated as such by 
 the owner, his landlord ; and the landlord may immediately main- 
 tain an ejectment to recover the possession without giving a notice 
 to quit. But hy the consent of his landlord his tenancy may be 
 continued, and if such /continuance, by consent, be without any 
 fixed limit, he becomes a tenant from year to year. Still, the mere 
 unbroken silence and inaction of the owner, will not improve or 
 enlarge the character of the tenant's possession. {Den v. Adamis, 
 7 Halst. E. 99.) 
 
 If the tenant in possession holds under a mortgagor by lease, 
 subsequent to the mortgage, as tenant from year to year, he is not 
 entitled to notice to quit. {Den v. Stockton, 7 Halst. E. 322.) 
 And a tenant ehtitled to notice to quit, will forfeit his right to 
 such notice, by disclaiming the landlord's title. {Den v. Blair, 3 
 Green's E. 181.) 
 
 The courts of New Jersey hold that an ejectment for the land 
 will not lie against a tenant for the non-payment of rent, or a 
 refusal to pay the rent when due, unless there is a clause of re- 
 entry in the lease ; and if the plaintiff enter by virtue of the clause 
 of re-entry, he must show himself entitled to do so by the terms of 
 the contract, and he must show the absence of sufficient distress 
 on the preniises, or excuse himself from the necessity of making or 
 attempting a distress. {Den v. Craig, 3 Green's E. 192.) 
 
344: LAW OF SJECTUENT AND ADVERSE ENJOYMENT. 
 
 By the statutes of New Jersey, all leases, estates, interests of 
 freehold or terms of years, or any uncertain interest of, in, to, or 
 out of any lands, made or created by livery and seisin only, by 
 parol, and not put in writing, are to have the force and effect of 
 leases, or estates at will only ; except that all leases not exceeding 
 three years from the making thereof, whereupon the rent reserved 
 to the landlord, di^ring such term, shall amount to two-third parts, 
 at the least, of the full improved value of the thing demised, are 
 good without writing. (Elmer's Dig. p. 304, § 9.) 
 
 In the state of Pennsylvania, the statute requires every tenant 
 to whom any declaration in ejectment is delivered for any lands, 
 tenements or hereditaments, forthwith to give notice thereof to his 
 landlord or landlords, bailiff, receiver, agent or attorney, under 
 penalty of forfeiting the value of two years' rent of the premises so 
 demised or holden in the possession of such tenant, to the person 
 of whom he or she holds; to be recovered by action of debt, 
 to be brought in any of the courts of common pleas within the 
 commonwealth, wherein no essoin, protection or wager of law will 
 be allowed, nor any more than one imparlance. 
 
 It is also made lawful for the court where such ejectment is 
 brought, to suffer the landlord to make himself a defendant, by 
 joining with the tenant to whom the declaration was delivered, 
 the same as is allowed by the statute of New Jersey, whereupon 
 the same proceedings are had as are authorized by the New Jersey 
 statute. (Purdon's Digest, 1861, p. 364, §§ 2, 3.) 
 
 By the statutes of Pennsylvania, as in New Jersey, all leases, 
 estates, interest of freehold or term of years, or any uncertain 
 interest of, in or out of any lands, made or created by livery and 
 seisin only, or by parol, and not put in writing and signed by the 
 parties so making or creating the same, or their agents, thereunto 
 lawfully authorized by writing, are to have the effect of leases at 
 will only, except leases not exceeding three years. (Purdon's Di- 
 gest, 497, § 1.) 
 
 Under this provision of the statute, where the question was, 
 whether part performance of a parol lease for seven years -would 
 take the case out of the statute, the court held that it would, 
 where the possession relied on as part performance was directly 
 referable to the lease. Judge Gibson, in his opinion in the case, 
 says: "Delivery of possession in pursuance of a parol contract for 
 an interest in land, has uniformly been considered such a perform- 
 
EJECTMENT A3 BETWEEN LANDLORD AND TENANT. 345 
 
 ance as to take the case out of the statiite." {Jones v. Peterman, 
 3 Serg. & Kawle's K. 543.) The opinion of the judge is based on 
 the authority of the English decisions, which he cites, and which 
 fully sustain the doctrine. This is a principle which it is well to 
 bear in mind. 
 
 Ample provisions are made by the statutes of Pennsylvania for 
 the recovery of the possession of demised premises for non-pay- 
 ment of rent, etc., by a summary process, but the foregoing seem to 
 be the only enactments with especial reference to the action of 
 ejectment as between landlords and tenants in that state. The 
 action of ejectment may doubtless be maintained in all cases as 
 between landlord and tenant in the state, when the circumstances 
 are such that-the action will lie at common law. 
 
 It has been held by the courts of the state that a refusal by a 
 tenant to pay rent under a claim by him of right to the reversion, 
 gives an immediate right of entry and action at common law. 
 {Clark V. Everly, 8 Watts & Serg. E. 226.) 
 
 Where a power of re-entry is reserved for the non-payment of 
 rent, if sufficient distress should not be found upon the premises, 
 it is incumbent upon the landlord who seeks to enforce this right 
 by ejectment to show that there was not sufficient property on the 
 premises to pay the rent. {Newman v. Eutter, 8 Watts' K. 51.) 
 And, of course, a landlord cannot support ejectment against his 
 lessee, during the time devised, without a forfeiture of the lease. 
 {Penn v. Divellin, 2 Yates' E. 309.) 
 
 To entitle the owner of a rent-charge to re-enter the demised 
 premises, there must be a demand of the precise rent due, on the 
 very day on which it becomes due, and on the most notorious 
 place on the land; and this, although the land is vacant and unin- 
 closed. The same rule in this regard, therefore, seems to prevail 
 in Pennsylvania as at common law. {McCormich v. Connell, 6 
 Serg. & Eawle's E. H 51.) And it is held that ejectment does not 
 lie to enforce the payment of ground-rent in arrear, where there 
 is no clause of re-entry in the lease under which the premises are 
 held. {Kenesse v. Elliott, 9 Watts' E. 258.) 
 
 If a tenant has bound himself to quit the demised premises at a 
 definite and fixed period, the landlord may, without notice to him, 
 set him out of possession, if it can be done without b-:each of the 
 peace, or he may bring ejectment and sue on his covenant for, 
 damages. {Rich v. Eeyser, 64 Penn. E. 86.) 
 44 
 
346 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In the state of Ohio, the statute provides that no leases, estates 
 or interests, either of freehold or terms for years, or any uncertain 
 interest of, in, or out of lands, tenements, or hereditaments, shall 
 be assigned or granted, unless it be by deed, or note in writing, 
 signed by the party so assigning or granting the same, or their 
 agents thereunto lawfully authorized, by writing, or by act and 
 operation of law. (1 E. S. 1860, chap. 47, § 4.) 
 
 The courts of the state hold that a parol lease of lands for more 
 than one year, but less than three, will, by the taking possession 
 under it, and the payment of rent according to its terms, be with- 
 drawn wholly from the operation of the statute. It seems to be 
 well settled by the authorities, that such a lease for one year, 
 when the tenant is put in possession of the premises leased, is 
 valid, notwithstanding the terms of the statute. It has been de- 
 cided that a parol lease of a farm for one year, after the lessee had 
 been put into possession, was valid, and that the tenant might 
 defend his possession against his landlord as well as against a 
 stranger, and where a parol contract was made to clear and fence 
 a lot of ground, the party so clearing and fencing to have the 
 privilege of raising a crop of corn on the premises, the landlord 
 entered and gathered the crop ; the assignor of the tenant brought 
 trespass, and a question was made as to whether the contract was 
 within the statute of frauds ; the court held that it was taken out 
 of the statute by the part performance. ( Wilier v. Paine, 1 Ohio 
 E. 251.) 
 
 No distinction is made by the terms of the statute between leases 
 for a term not exceeding one year, and those for a longer term. 
 The Ohio statute is but a re-enactment of the English statute upon 
 the same subject, and the courts of England have always regarded 
 leases, without regard to their duration, as taken out of the statute 
 by part performance. {Earl ofAylesford's Case, 2 Strange's E. 783.) 
 'The statute of frauds of ]N"ew York is different from the clause of 
 the Ohio statute in that it expressly requires leases for more than 
 one year to be in writing, under which the courts of that state hold 
 that a parol lease for lands is absolutely void for more than one 
 year. {Cornwell v. Crane, 7 Barb. E. 191.) But the courts of 
 Ohio follow the decisions of the English and the Pennsylvania 
 courts, and hold that a parol lease for land is taken out of the 
 operation of that clause of their statute of frauds, which relates in 
 terms to leases and interests in land, by a change of possession 
 
BJECTMENT AS BETWEEN LANDLORD AND TENANT. 347 
 
 and tlie payment of rent in pursuance of the lease. {Grant v. 
 Eamsey, 7 Ohio State E. 157. Moore v. Beasley, 3 Ohio K. 294. 
 But vide Armstrong v. Kattenhorn, 11 ib. 265.) There does not 
 seem to be any special provision by statute in Ohio in respect to 
 terminating tenancies for years, and other uncertain periods ; nor 
 in respect to the forfeiture of tenancies for the non-payment of the 
 rent reserved ; and, therefore, the rule of the common law upon 
 the same subject is probably in full force in that state. Indeed, it 
 has been recently held by the supreme court of the state, in accord- 
 ance with the common law doctrine, that in order to show a 
 forfeiture of an unexpired term of a leasehold estate, for non-pay- 
 ment of rent, the lessor must prove demand of payment of the 
 lessee when due ; and that the demand must appear to have been 
 for the precise rent due ; and to have been made, where no place 
 is named for payment, at the most public or notorious place upon 
 the premises ; if a dwelling-house be on the lands, at the front 
 door thereof. And further, that the demand should be made on 
 the day the rent falls due ; " at a convenient time before sunset ;" 
 by which is meant, immediately preceding sunset, and for a suffi- 
 cient space of time for counting and paying the money before 
 sunset. {Smith Y.WhitbeGk, \Z Ohio ^t.'R.^U. Boyd-v. Talhert, 
 12 Ohio R. 214.) 
 
 There is a statute in Ohio providing a summary proceeding be- 
 fore justices of the peace to I'estore premises to the rightful person 
 in case of forcible entry and detention ; in which case a three days' 
 notice to quit must be served ; but this statute applies only to the 
 remedy therein given. The object of the remedy in those cases is, 
 not to try the right, but to repress force, even when exerted under 
 color of right, and to induce men to apply to the laws for relief, 
 instead of seeking to do themselves justice, especially by means 
 which the law abhors. The statute is directed against those who 
 make unlawful and foroible entry, and restitution is made where 
 it is found that the premises arS held unlawfully, with force and a 
 strong hand. But in all cases of ejectment, as between landlord 
 and tenant, the common law rule would seem to be in force in 
 the state. 
 
 In the state of Michigan the statute requires every contract for 
 the leasing for a longer period than one year to be in writing, 
 signed by the party by whom the lease is to be made, or by some 
 person duly authorized by writing, to execute the same. (2 Comp. 
 
348 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Laws, 1857, ch. 104, § 8.) And no lease or grant of agricultural 
 land for a longer period than twelve yeai-s, reserving any rent or 
 service of any kind, is valid in the state. (State Constitution, 
 art. 18, § 12.) 
 
 By the statutes of the state, whenever the lessor of any dwell- 
 ing-house shall be convicted, or shall be guilty of keeping such 
 house as a house of ill-fame, resorted to for the purpose of prosti- 
 tution or lewdness, the lease or contract for letting such house 
 will, at the option of the lessor, become void, and such lessor will 
 thereupon have the like remedy to recover the possession, as against 
 a tenant holding over after the expiration of his term. (2 Comp. 
 Laws, ch. 185, § 11.) 
 
 It is also declared by statiite, that all estates at will or suffer- 
 ance may be determined by either party, by three months' notice 
 given to the other party ; and where the rent reserved in a lease 
 at will is payable at periods of less than three months, the time 
 of such service will be sufficient, if it be equal to the interval 
 between the times of payment ; and in all cases of neglect or 
 refusal to pay the rent due on a lease at will, fourteen days' notice 
 to quit, given in writing by the landlord to the tenant, is made 
 sufficient to determine the lease. (2 Comp. Laws, ch. 90, § 34.) 
 
 It will be observed, that this provision of the statute is similar 
 to the statute of Massachusetts on the same subject ; the decisions 
 of the courts, therefore, under the Massachusetts statute, may be 
 applicable to the Michigan statute. If any tenant for life, in 
 dower, or by curtesy, or any tenant for years, be impleaded, and 
 the person to whom the reversion or remainder appertains, shall 
 come into court before any trial shall be had in such action, or 
 before judgment by default therein, and pray to be received to 
 defend his right, he must be received for that pui-pose, and must 
 be permitted to plead to the action, upon such terms as the court 
 may deem just. 
 
 If any tenant for life or years make default or give up any lands 
 demanded, so that judgment be given on such default or surrender, 
 the person to whom the reversion or remainder of such lands apper- 
 tains, may, after the termination of the estate of such tenant, have 
 an action of ejectment to recover the same lands. (2 Comp. Laws, 
 ch. 139, §§ 1, 2.) And all recoveries had by agreement of parties, 
 or by fraud, against any tenant for life, in dower or by the curtesy, 
 of any lands, tenements or hereditaments, are made void as against 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 349 
 
 all persons to whom any reversion or remainder of siicli lands shall 
 appertain, and as against their heirs, unless the appearance of the 
 person having such reversion or remainder shall have been duly- 
 entered in the court where such recovery shall be had. (2 Comp. 
 Laws, ch. 139, § 5.) 
 
 The statutes of Michican give a remedy by summary proceedings 
 to recover the possession of demised lands in certain eases, but the 
 foregoing provisions seem to be all that are specially applicable to the 
 action of ejectment as between landlords and tenants in that state. 
 
 Where a lease is invalid by the statute of frauds, the lessee 
 having taken possession is held to be a tenant at will ; and if the 
 agreement was to pay rent monthly, the courts hold that the lessee 
 is entitled to a month's notice to surrender possession before pro- 
 ceedings can be taken to dispossess him. And it is decided, that 
 this month's notice must terminate with one of the regular monthly 
 periods. {Huyser v. Chase, 13 Mich. E. 98.) And it has been 
 held, that where premises are let at a fixed monthly rent, with the 
 understanding that the tenant shall give up possession whenever 
 the landlord may require them for his own use, the letting creates 
 a tenancy at will which can only be terminated by a full month's 
 notice to quit at the end of one of the regular monthly periods. 
 ( Woodrow V. Michael, 13 Mich. E. 187.) And where rent is pay- 
 able weekly, or at other stated intervals, in advance, the tenant 
 has the whole of the first day of each succeeding week, or other 
 interval of time, in which to make the payment ; and proceedings 
 cannot be instituted to remove the tenant until the expiration of 
 such first day. {Sherlock v. Thayer, 4 Mich. E. 355.) At com- 
 mon law, a tenancy at will would be terminated by a sale of the 
 premises by the owner ; but by the statutes of Michigan it is held, 
 that a notice to quit must be served notwithstanding a sale. {Rog- 
 sett V. Ellis, 17 Mich. E. 351, 366.) 
 
 In the state of Indiana, the statute declares that estates at will 
 may be determined by one month's notice in writing delivered to 
 the tenant. And a tenancy at will cannot arise without an express 
 contract ; and all general tenancies, in which the premises are 
 occupied by the consent, either express or constructive, of the land- 
 lord, are to be deemed tenancies from year to year. All tenancies 
 from year to year may be determined by at least three months 
 notice given to the tenant prior to the expiration of the year ; and 
 in all tenancies which, by agreement of the parties, express or 
 
350 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 implied, are from one period to another of less than three months' 
 duration, a notice equal to the interval between such periods is 
 made sufficient. (2 K. S. 1852, part 2, ch. 8, §§ 1, 2, 3. 2 E. S. 
 1862, ch. 10, §§ 1, 2, 3.) 
 
 If a tenant neglect or refuse to pay rent when dne, ten days' 
 notice to quit will determine the lease, when not therein otherwise 
 provided, unless such rent be paid at the expiration of said ten 
 days. (2 E. S. part 2, ch. 8, § 4, as amended by Laws of 1867, 
 ch. 75. 2 E. S..1862, ch. 10, § 4.) 
 
 Where the time for the determination of a tenancy is specified 
 in the contract, or where a tenant at will commits waste, or in the 
 case of a tenant at sufferance, and in any case where the relation 
 of landlord and tenant does not exist, no notice to quit is neces- 
 sary. (2 E. S. 1852, ch. 10, § 5. 2 E. S. 1862, part 2, ch. 8, § 5.) 
 "Where a notice to quit is required, the same may be served on 
 the tenanlj or if he cannot be found, by delivering the same to 
 some person of proper age and discretion, residing on the premi- 
 ses, having first made known to such person the contents thereof. 
 (2 E. S. part 2, ch. 8, § 6. 2 E. S. 1862, ch. 10, § 6.) And when 
 notice to quit is required by law, a copy of the same, with proof 
 of service, is made necessary to recovery by the plaintiff. (2 E. 
 S. 1852, part 4, ch. 4, § 5.) 
 
 A lease for more than three years from the making thereof, will 
 not be valid and effectual against any person other than the lessor, 
 his heirs and devisees, and persons having notice thereof, unless 
 it is made by deed recorded within the time and in the manner 
 provided in respect to conveyances of real estate. (1 E. S. 1852, 
 ch. 23, § 11. 1 E. S. 1862, ch. 37, § 4.) Although a parol lease 
 for a less term than three years is valid by express provision of 
 the statute. (1 E. S. 1862, ch. 66, § 1, sub. 5.) But it has been 
 held that an agreement to lease land for the term of two years, 
 at a rent equal to the full rental value of the premises, the occupa- 
 tion to commence at a future day, is an agreement relating to an 
 interest in land, and mnst be in writing under the Indiana statute 
 of frauds, in order to be effectual. {Stackierger v. Mortelle, 4 
 Ind. E. 461.) 
 
 It seems that a voluntary conveyance of real estate, though not 
 recorded as prescribed by the statute of Indiana, is valid as 
 against any subsequent voluntary conveyance of the property 
 executed by the grantor. ( Way v. Lyon, 3 Blackford's E. 76.) 
 
JUJBCTMENT AS BETWEEN LANDLORD AND TENANT. 351 
 
 The failure of a tenant to pay rent will not work a forfeiture of 
 liis estate, unless it is so expressed in the lease or agreement. By 
 the Words " all general tenancies," in the statute, the legislature 
 meant such tenancies only as were not fixed and made certain in 
 point of duration, by the agent of the parties. This is said by 
 judicial authority, to be apparent from several considerations. 
 When lands are demised for a definite term, no notice to quit is 
 necessary in order to terminate the tenancy. Yet the legislature 
 have provided for terminating tenancies from year to year, by 
 three months' notice to quit. It would be an absurdity to suppose 
 the legislature intended to change tenancies for a fixed period, 
 whether for one year, or more or less, into tenancies from year to 
 year, and then enable the landlord to terminate them by three 
 months' notice to quit. The statute seems to be merely declara- 
 tory of the common law on the subject. ( Vide Brownh Admin- 
 istrator V. Bragg, 'ii% Ind. E. 122.) 
 
 Where premises were leased for the term of one year from the 
 first day of March, 1855, the court held that the tenancy deter- 
 mined on the first day of March, ] 856 ; and that under the 
 statute the tenant was not entitled to notice to quit. (Layman v. 
 Throp, 11 Ind. E. 358. McClain v. Doe, 5 ib. 237. Myersoh v. 
 mff, Ib. 523.) 
 
 A person in possession of land with the consent of the owner, 
 under a contract of purchase which is not completed, is a mere 
 tenant at will, and such tenancy determines by the death of the 
 lessor. {Manchester y. Dodridge, 3 Ind. E. 360.) 
 
 Where a lease is made to have and to hold at the will of the 
 lessor, the law implies it to be at the will of the lessee also. Such 
 lease may be determined by notice to quit by either party. {Doe 
 V. Richard, 4 Ind. E. 374.) And the old constructive tenancies 
 at will are now treated as tenancies from year to year, in Indiana, 
 are assignable, and require notice to quit to terminate them. 
 {JacTcson v. Hughes, 1 Blackf. E. 421.) But when lands are devised 
 for a definite term, no notice to quit is necessary. {Pierson v. Doe, 
 2 Ind. E. 123. Myerson v. Neff, supra.) 
 
 By tlie statutes of Illinois, in all cases between landlord and 
 tenant, where one half-year's rent shall be in arrear and unpaid, 
 and the landlord or lessor to whom such rent is due, has right by 
 law to re-enter for non-payment thereof; such landlord or lessor 
 may, without any formal demand or entry, commence an action of 
 
352 LAW OP EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ejectment for the recovery of the demised premises, and in ease 
 judgment be given for the plaintiff in such action of ejectment, 
 and the writ of possession thereon be executed thereon befor'e the 
 rent in arrear and costs of suit be paid, then the lease of such 
 lands will cease and be determined, unless such lessor or lessees 
 shall, by writ of error, reverse the said judgment, or shall by bill 
 filed in chancery, within six months after the rendition of such 
 judgment, obtain relief from the same, provided that any such 
 tenant or tenants may, at any time before final judgment on said 
 ejectment, pay or tender to the landlord or lessor of the premises, 
 the amount of rent in arrear and costs of suit, and the proceedings 
 on such ejectment will thereupon be discontinued. And every 
 tenant who shall, at any time be sued in ejectment by any person 
 other than his or her landlord, is required forthwith to give notice 
 thereof to his or her landlord, or to his or her agent or attorney, 
 under the penalty of forfeiting two years' rent of the premises in 
 question, or the value thereof, to be recovered by such landlord, 
 by action of debt, in any court having cognizance thereof. (1 
 Comp. Stat. 1858, pp. 716, 717, §§ 4, 5.) 
 
 In all cases of tenancy from year to year, in Illinois, a notice 
 of sixty days is made sufficient to terminate the tenancy at the end 
 of the year after such notice is given ; provided such notice shall 
 be in writing and served by copy. And in all cases of tenancy by 
 the month, or for any other term less than one year, where the 
 tenant holds over without special agreement, the landlord has the 
 right to terminate the lease by thirty days! notice, in writing, to 
 be served by copy, and to maintain an action for forcible detainer. 
 And in all these cases, where a tenancy is terminated by notice, no 
 further demand is necessary before bringing suit. (Public Laws 
 of 1861, pp. 136, 137.) 
 
 A notice to quit should be signed by the landlord or a properly 
 authorized agent, to be binding on the tenant. {Ball v. Pech, 43 
 111. E. 482.) 
 
 The fact that a landlord has given his tenant notice to quit, 
 where, from the character of the tenancy, no notice was required, 
 will not commit the landlord as to the nature of the term ; but he 
 may repudiate the notice, and place himself upon the true ground. 
 {Seoor V. Festana, 37 111. E. 525.) 
 
 A tenant is entitled, in the action of ejectment, to a notice to 
 quit ; but this may be superseded, and the tenancy terminated by 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 353 
 
 the denial of the tenant, by word or act, of the title of his land- 
 lord. ( Wood V. Morton, 11 111. K. 547.) 
 
 To terminate a tenancy by the month or week, a notice for a 
 like time is requisite, which should be fixed by the rent day. 
 {Prickett v. Bitter, 16 111. E. 96. Seever v. McLees, 24 ib. 193.) 
 And in all cases a copy of the notice should be left with the 
 tenant. {Seever v. McLees, supra) 
 
 In the state of Wisconsin, it is provided bj' the Revised Statutes, 
 that whenever there is a tenancy at will or by sufferance, created 
 in any manner, the same may be terminated by the landlord's 
 giving one month's notice in writing to the tenant, requiring him 
 to remove from the demised premises, or by the tenant's giving 
 one month's notice iii writing that he shall remove from the said 
 premises, and by surrendering to the landlord the possession 
 thereof, within the time limited in such notice ; provided, however, 
 that if any tenant for a year or more shall hold over after the 
 expiration of his term, he may, at the election of his landlord, be 
 considered as a tenant from year to year, upon the terms of the 
 original lease. The notice must be served by delivering the same 
 to the tenant, or to some person of proper age residing on the 
 premises, or if the tenant cannot be found, and there be no such 
 person residing on the premises, such notice may be served by 
 affixing tlie same in a conspicuous piart of the premises, where it 
 may be conveniently read. At the expiration of one month from 
 the service of such notice, the landlord may re-enter, or maintain 
 an action for the recovery of the possession thereof", or proceed in 
 the manner prescribed by law to remove such tenant, without fur- 
 ther or other notice to quit. 
 
 The grantors of any demised premises or of the reversion 
 thereof, the assignee of the lessor of any. demise, and the heirs and 
 personal representatives of the lessor, grantor or assignee, have 
 the same remedies by entry, action or otherwise, for the non-per- 
 formance of any agreement contained in the lease so assigned, as 
 their grantor or lessor had, or might have had, if such reversion 
 had remained in such lessor or grantor. (E. S. 1858, ch. 91, §§ 2, 
 3, 4, 14.) 
 
 And every tenant upon whom any process, proceeding or notice 
 
 of any proceeding to recover the land occupied by him, or the 
 
 possession thereof, shall be served, is required forthwith to give 
 
 notice thereof to his landlord, under the penalty of forfeiting the 
 
 45 
 
354 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Talue of three years' rent of the premises occupied by him, which 
 may be sued for and recovered by the landlord or person of whom 
 such tenant holds. (E. S. ch. 91, § 18. And vide Stridde v. 
 Saroni, 21 "Wis. E. 173.) 
 
 It is declared by the constitution of the state, that all leases and 
 grants of agricultural land, for a longer term than fifteen years, 
 are to be void. (State Const, art. 1, § 14.) And all loans, or con- 
 tracts for the leasing for a longer period than one year, arc declared 
 void by statute, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and subscribed 
 by the party by whom the lease is to be made, or by his lawfully 
 authorized agent. (E. S. ch. 106, §§ 8, 9.) And whenever the 
 lessee of any dwelling-house shall be convicted of keeping a house 
 of ill-fame therein, the lease or contract of letting such house may 
 be declared void by the landlord, when he may recover the posses- 
 sion of the premises, the same as though the tenant was holding 
 over after the expiration of his term. (E. S. ch. 170, § 10.) 
 
 It has been held, that a person who takes and retains the peace- 
 able possession of mortgaged premises by direction of the mort- 
 gagee, after breach of the condition of the mortgage, without any 
 agreement to pay rent, will be a tenant at will or from year to 
 year of such m'ortgagee, and cannot be ejected by the mortgagor 
 or his assigns so long as the mortgage remains unsatisfied. {Hen- 
 nessey V. Farreli, 20 Wis. E. 42.) 
 
 In ejectment by the landlord against his tenant holding over, it 
 is held by the courts of Wisconsin, that the latter may defend the 
 action on tlie ground that the title has passed from the plaintiff 
 since the commencement of his term. In this respect, the rule is 
 held to be the same in Wisconsin, as in England, and in the states 
 of New York and Pennsylvania. {Chase v. Deariorn, 21 Wis. E. 
 57, and vide England v. Slede, 4 Term E. 681. Jackson v. Davis, 
 5 Cow. E. 123-135. WelUs v. Lathrop, 22 Wend. E. 121. Elliott 
 V. Smith, 23 Penn. E. 131.) 
 
 In Minnesota, contracts for sale or for leasing any lands for a 
 longer period than a year are void unless in writing and sub- 
 scribed by the party, the same as in Wisconsin. (Con. Stat. 1858, 
 ch. 49, §§ 8, 9. Eev. of 1866, ch. 41, § 12.) 
 
 By the statutes of the state, all estates at will or by sufferance 
 may be determined by either party, by three months' notice given 
 to the other party ; and when the rent reserved in a lease at will is 
 
KTECT3IENT AS BETWEEN LANDLORD AND TENANT. 355 
 
 payable at periods of less than three months, the time of snch 
 notice is made sufScient, if it be equal to the interval between the 
 times of payment; and in all cases of neglect or refusal to pay 
 rent on a lease at will, fourteen days' notice to quit, in writing, by 
 the landlord to the tenant, is sufficient to determine the lease. 
 (Con. Stat. ch. 37, § 34. Kev. of 1866, ch. 75, § 21.) And when 
 in case of a lease of real property, and the failure of the tenant to 
 pay rent, the landlord has a subsisting right to re-enter for such 
 failure, he may bring an action to recover possession of the prop- 
 erty, and such action is made equivalent to a demand of the rent 
 and a re-entry upon the property ; but if at any time before tlie 
 expiration of six months after possession obtained by the plaintiff 
 on recovery in the'action, the lessee or his successor in interest, as 
 to the whole or part of the property, pay to the plaintiff, or bring 
 into court the amount of rent then in arrear, with interest and the 
 costs of the action, and perform the other covenants on the part 
 of the lessee, he may be restored to the possession, and hold the 
 property according to the terms of the original lease. (Con. Stat. 
 ch. 6i, § 14. Eev. of 1866, ch. 75, § 15,) So also, in case of waste 
 by the tenant, the landlord may regain possession of the premises 
 by action. But judgment of forfeiture and eviction, can only be 
 given in favor of the person entitled to the reversion against the 
 tenant in possession, where the injury to the estate in reversion is 
 adjudged in the action to be equal to the value of the tenant's 
 estate or unexpired term, or to have been done in malice. (Con. 
 Stat. ch. 64, §§ 16, 17. Eev. of 1866, ch. 75, § 27.) And a lease 
 of any dwelling-house may be declared void by thfe lessor in case 
 the lessee is convicted of keeping the same as a house of ill fame, 
 the same as in Wisconsin. (Con. Stat. ch. 26, § 10.) "Where the 
 lessee covenants to pay all taxes and assessments levied or assessed 
 upon the land demised, and a right of re-entry is given to the 
 lessor in default of the lessee to pay the same, such lessor may 
 regain possession of the premises on breach of the covenant by 
 the lessee without any previous demand of the tenant to pay the 
 same. {Byrane v. Rogers, 8 Minn. E. 281,) And where an action 
 is brought under the statute to recover possession of land for non- 
 payment of rent and taxes by a tenant, and the answer admits 
 service of the demand in -writing required by the statute, the 
 plaintiff may rely upon such admission, and need not prove the 
 same on the trial. {Chcmdler v. Kent, 8 Minn. E, 536,) 
 
356 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In the state of Iowa, leases for land for a term exceeding one 
 year are declared to be void by statute unless the same are in 
 writing, and signed by the party charged, or by his lawfully 
 authorized agent. ( Eev. Laws, 1860, ch. 159, § 4007.) 
 
 Thirty days' notice in writing is necessary to be given- by either 
 party before he or she can terminate a tenancy at will ; but where 
 in any case rent is reserved, payable at intervals, of less than thirty 
 daj^s, the length of notice need not be greater than such interval 
 between the days of payment. In case of tenants occupying and 
 cultivating farms, the notice must fix tlie termination of the ten- 
 ancy to take place on the first day of March : provided, that where 
 an express agreement is made, whether the same has been reduced 
 to writing or not, the tenancy will cease at the time agreed upon, 
 without notice. (Eev. Laws, ch. 75, § 2218.) 
 
 The service of the notice to quit, provided for by the statute, 
 cannot be proved by the written return and affidavit of the person 
 making the service. The proof in such a case must be subject to 
 the common law rule relating to cross-examination. (Soilings- 
 worth V. Snyder, 2 Iowa R. 435.) 
 
 A lease stipulated that the tenants should " deliver the said- house 
 up to said lessor at any time, on demand, in case the rent is not 
 paid in advance, waiving all process at law." The court held that 
 a failure by the tenants to pay rent, in advance, as stipulated, for- 
 feited all rights under the lease. {Simms v. Marshall, 3 Greene's 
 E. 502.) 
 
 Where the lessee of a dwelling-house is convicted of keeping the 
 same as a house of ill fame, the lease or contract for letting such 
 house may be declared void by the lessor, whereupon he may recover 
 possession of the premises. (Eev. Laws, ch. 172, §4353.) 
 
 In the state of Missouri the statute provides that every tenant 
 on whom a summons in an action to recover the tenements held 
 by him shall be served, shall forthwith give notice thereof to the 
 person, or the agent of the person of whom such tenant holds, 
 under penalty of forfeiting to such person the value of three years' 
 rent of the premises occupied by him. (Gen. Stat. 1865, ch. 189, 
 § 6, E. S. p. 1011.) 
 
 By the statute of frauds and perjuries of Missouri, all leases not 
 in writing are declared to operate as estates at will only. (Gen. 
 Stat. 1865, ch. 106, § 1.) This statute was taken from the English 
 act of 29 Car. 2, ch. 3, and in accordance with the construction 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 357 
 
 placed upon the latter act by the English courts, it is held in Mis- 
 souri that a parol lease, for a term of years, though by the statute 
 of frauds declared to be a tenancy at will, has the effect of creating 
 a tenancy from year to year. {Kerr v. Ciarh, 19 Mo. E. 132. 
 Ridglexj v. Stillwell, 28 ib. 400 ; and vide Clayton v. Blakely, 
 8 Term E. 3.) 
 
 In the state of Missouri either party may terminate a tenancy 
 from year to year, by giving notice, in writing, of his intention to 
 terminate the same, of not less than three months next before the 
 end of the year ; and a tenancy at will, or by sufferance, or for less 
 than one year, may be terminated by the person entitled to the 
 possession, by giving one month's notice, in writing, to the person 
 in possession, requiring such notice. But no notice to quit is neces- 
 sary from or to a tenant whose term is to end at a certain time, or 
 where by special agreement notice is dispensed with. (Gen. Stat. 
 1865, ch. 189, §§ 12, 13, 14. Vide Laws of 1869, p. 68.) 
 
 The possession of premises by a party under a mere permission 
 to occupy for an indefinite period, no rent being reserved, is not a 
 tenancy from year to year ; so that in such case three month's 
 notice to quit is not necessary. ( Williams v. Deriar, 31 Mo. E. 
 13.) In the cases of Kerr v. Clark, supra, and Ridgley v. Stillwell, 
 supra, an actual tenancy existed, upon a reservation of rent, and 
 the rule is different in reference to such a state of facts, than where 
 no rent is reserved. And it seems that a tenancy at will cannot 
 arise, without a grant or contract, denoting permission to occupy. 
 {Young V. Kirhner, 14 Mo.'E. 426.) Although tenancies at will 
 may be created without writing, and are not within the provisions 
 of the act regulating conveyances, a lease made by an agent in his 
 own name is void, and the tenant entering under such a lease is a 
 tenant at will, and as such is entitled to a notice to quit before an 
 action of ejectment will lie against him. {Murray v. Armstrong, 
 11 Mo. E. 209.) 
 
 In Missouri the statute provides that no tenant, for a term not 
 exceeding two years, or at will, or by sufferance, can assign or 
 transfer his term or interest, or any part thereof, to another, with- 
 out the written assent of the landlord, or person holding under 
 him ; and in case any tenant violates this provision of the statute, 
 the landlord may re-enter and take possession of the demised prem- 
 ises, after giving ten days notice to quit the possession. (Gen. Stat. 
 1865, cL189, §§10,11.) 
 
358 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The statute of Missouri also provides that, whenever a half year's 
 rent, or more, is in arrear from a tenant, the landlord, if he has a 
 subsisting right by law to re-enter for the non-payment of such 
 rent, may bring an action to recover the possession of the demised 
 premises ; and iu such action, if the summons cannot be served in 
 the ordinary mode provided by law, it may be served by affixing 
 a copy of the petition and summons on a conspicuous part of the 
 demised premises, where it may be conveniently read ; and the 
 service of the summons in such action is deemed and stands instead 
 of a demand of the rent in arrear, and of a re-entry on the demised 
 premises. If on the trial it is proved, or, upon judgment by default, 
 it appear by atfidavit that the plaintiff had a right to commence 
 his action, he will have judgment for the possession of the premises 
 and costs, which, however, may be prevented by a tender of the 
 rent and costs before judgment. (Gen. Stat. 1865, ch. 189, §§ 19, 
 21. E. S. pp. 1014, 1015.) 
 
 In the new state of Nebraska, no estate or interest in lands, 
 other than leases for a term not exceeding one year, can be created, 
 only by act or operation of law, or by a deed or conveyance in 
 writing subscribed by the party creating the same. (Rev. Stat. 
 1866, chap. 43, § 62.) From aught that" appears in the index to 
 the Revised Statutes of 1866, or in the statutes of 1867, there 
 is no enactment as yet in Nebraska in respect to landlord and 
 tenant, and the termination of tenancies for uncertain periods; 
 and if there is no provision of the statute upon this subject, the 
 common law will govern the same in tliat state. 
 
 In the state of Kansas, whenever any lessee of any house or 
 building shall be convicted of suffering any prohibited gaming 
 table, bank or device to be set up, or kept or used therein for the 
 purpose of gaming, or of keeping in the same a bawdy house, 
 brothel or common gaming house, the lease or grant for letting 
 such house or building becomes void, and the lessor may re-enter 
 on the premises let, and have the same remedies as against a 
 tenant holding over. (Gen. Stat. 1868, ch. 31, § 245.) 
 
 By the statute of Kansas, any person in possession of real prop- 
 erty, with the assent of the owner, is presumed to be a tenant at 
 •will, unless the contrary is shown. "When premises are let for one 
 or more years, and the tenant, with the assent of the landlord, 
 continues to occupy the premises after the expiration of the term, 
 the tenant is deemed to be a tenant from year to year. And 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 359 
 
 where rent is reserved, paj'able at intervals of three months or 
 less, the tenant is deemed to hold from one period to another, 
 equal to the intervals between the days of payment, unless there 
 is an express contract to the contrary. Thirty days' notice in 
 writing is necessary to be given by eitlier party before he can 
 terminate a tenancy at will, or from one period to another, of 
 three months or less ; but when, in any case, rent is reserved, pay- 
 able at intervals of less than thirty days, the length of notice 
 need not be greater than such interval between the days of pay- 
 ment. All tenancies from year to year may be determined by at 
 least three months' notice in writing given to the tenant prior to 
 the expiration of the year ; except that in case of tenants occupy- 
 ing and cultivating farms, the notice must fix the termination of 
 the tenancy to take place on the first day of March. 
 
 If a tenant, for a period of tliree months or longer, neglect or 
 refuse to pay rent when due, ten .days' notice, in writing, to quit, 
 will determine the lease, unless the rent be paid before the expira- 
 tion of the ten days. And if a tenant for a period of less than 
 three months shall neglect to pay rent when due, a notice of five 
 days determines the lease, unless the rent is paid before the expi- 
 ration of such five days: But when the time for the determina- 
 tion of a tenancy is specified in the contract, or when a tenant at 
 will commits waste, or in the case of a tenant at sufferance, and 
 when the relation of landlord and tenant does not exist, no notice 
 to quit is necessary. (Gen. Stat. 1868, ch. 55, §§ 1-9.) The 
 notice to quit may be served on the tenant, or if he cannot be 
 found, by delivering the same to some person over twelve years 
 of age residing on the premises, having first made known to such 
 person the contents thereof. (Gen. Stat. 1868, ch. 55, § 10.) 
 
 By the statutes of Kansas, no tenant for a term not exceeding 
 two years, or at will, or by sufferance, is permitted to assign or 
 transfer his term or interest, or any part thereof, to another, with- 
 out the written assent of the. landlord, or person holding under 
 him, upon penalty of forfeiting the estate, on ten days' notice 
 to quit possession by the landlord. (Gen. Stat. 1868, ch. 55, 
 §§ 11, 12.) 
 
 "Where a lease contained a stipulation that if the lessees failed to 
 pay rent to a certain time, or taxes, etc., or to refund those paid 
 by the lessor, the lease should be forfeited ; and when the lease 
 contained, afterward, an independent stipulation that the lessee 
 
360 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 should not assign the lease without the written consent of the 
 lessor, with no penalty expressed, it was held that the parties 
 having made written contracts with express stipulations, it is not 
 the policy of the court to extend them by implication ; having 
 expressed some conditions, they are presumed to have expressed 
 all. {Barnes v. McCublin, 3 Kansas E. 221.) 
 
 In the state of Nevada, all leases for a period of over ten years 
 are declared void. (Laws of 1861, ch. 9, § 78.) Provision is also 
 made in respect to the manner in which a demand of rent may be 
 made in order to work a forfeiture of the lease in default to pay 
 rent when due. (Laws of 1864r-5, ch. 81, § 2.) 
 
 In all leases of lands or tenaments from month to month, the 
 landlord maj' change tlie terms of the lease, to take effect at the 
 expiration of the month, or giving notice in writing, at least fif- 
 teen days before the expiration of the month; and the notice 
 when served on the tenant,'will of itself operate to establish the 
 terms, rent and conditions specified in such notice, if the tenant 
 coHtinues to hold the premises after the expiration of the month. 
 In all leases of lands or tenaments for a month, or less than one 
 year, and the tenant holds over his term by consent of his land- 
 lord, the tenancy is construed to be a tenancy from month to 
 month, or a tenancy for s.uch term less than a year, as the case 
 may be. (Laws of 1864, ch. 81, § 4.) Full provision is made for 
 obtaining the possession of demised premises where the tenant 
 unlawfully holds over the same, before justices of the peace ; but 
 this does not prevent the landlord from bringing his action in a 
 court of record in a proper case, under the civil practice act of the 
 state. 
 
 In the prospective state of Colorado, in oi'der to work a forfeiture 
 ■ of a lease for non-payment of rent, it is not necessary to make a de- 
 mand for rent on the day on which the same becomes due, or at any 
 particular time of day, but demand may be made of the tenant or 
 person from whom such rent is due, at any time after the rent is 
 due ; and upon failure on the part of the lessee or his assigns to 
 pay rent for the space of three -days after it is due, upon demand 
 in writing for possession of the demised premises, the same will 
 work a forfeiture of the lease. (Rev. Stat, 1868, ch. 35, §§ 5, 6.) 
 And the landlord in a lease from month to month may change the 
 terms of the tenancy by fifteen days' notice, the same as in Nevada. 
 (Rev. Stat. 1868, ch. 35, § 7.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 361 
 
 In all cases of tenancy from yefir to year, three months' notice 
 to quit is deemed sufficient to terminate the same ; a six months' 
 tenancy may be terminated by a notice of one month ; and ten 
 days' notice to quit is sufficient to terminate a month's tenancy. 
 (Kev. Stat. 1868, ch. 35, § 18.) 
 
 In the state of Oregon, in an action brought against the tenant 
 in possession, the landlord may be substituted the defendant in 
 place of the tenant in the manner pointed out by statute. (Gen. 
 Laws, 1864, Civ. Code, ch. 4, § 314.) And where in case of a 
 lease of real property, and the failure of the' tenant to pay rent, 
 the landlord has a subsisting right to re-enter for such failure, he 
 may bring an action to recover the possession of such property, and 
 such action is made equivalent to a demand of the rent, and a re- 
 entry upon the property. But the tenant is permitted to continue 
 in possession according to the terms of his lease on paying or ten- 
 dering the rent due and the costs of the action at any time before 
 judgment. (Gen. Laws, 1864, Civ. Code, ch. 4, § 32.) In cer- 
 tain cases of holding over demised lands, where notice to quit is 
 necessary, the same must be in writing, and must be served upon 
 the tenant or person in possession, by being delivered to him, or 
 left at the premises in case of his absence therefrom, and an action 
 for the recovery of the possession of the _demised premises, may be 
 maintained when the notice to quit has been served upon the ten- 
 ant or person in possession, for the period of ten days before the 
 commencement thereof, unless the leasing or occupation is for 
 the purpose of farming or agriculture, in which case the notice 
 mnst be served, for the period of ninety days before the commence- 
 ment of the action. (Gen. Laws, 1864, Civ. Code. ch. 19 §§ 4, 5, 
 6,7,10.) 
 
 All estates at will, or by sufferance, may be determined by either 
 party, by three months' notice in writing, given to the other party ; 
 and when the rent reserved in a lease at will is payable at i^eriods 
 of less than three months, the time of the notice is sufficient, if it 
 be equal to the interval between the times of payment ; and in all 
 cases of neglect or refusal to bring the rent due on a lease at will, 
 fourteen days' notice to quit, given in writing by the landlord to 
 the tenant, is made sufficient to deterniine the lease. (Gen. Stat. 
 1864. Gen. Laws, ch. 14 § 34.) 
 
 Leases for a term exceeding one year, must be in writing sub- 
 scribed by the party making the same, or the same are not valid. 
 46 
 
362 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 (Gen. Laws, 1864, Civ. Code, cli. 8, § 771.) And if the lessee 
 keeps a house of ill fame, brothel or bawdy house upon the demised 
 premises, the lessor may declare the lease void ; although the evi- 
 dence must be a conviction of the offense by the lessee. (Gen. 
 Laws, 1864, Crim. Code, ch. 48, § 636.) 
 
 It will be observed that there is a degree of similarity in some 
 of the provisions of the statutes of the Middle and Western states in 
 respect to landlords and tenants ; and it has been the design to 
 give only, and so much of the laws of such states as may substan- 
 tially comprehend the entire subject. 
 
 CHAPTEE XYIII. 
 
 THE ACTION OF EJECTMENT AS BETWEEN LANDLOKT) ANT) TENANT — THE 
 STATUXOKT POLICY OF THE SEVERAL STATES IN EESPECT TO LAIfD- 
 LOKD AND TENANT, AND THE EEMEDY BY EJECTMENT IN CASES OF 
 TENANCIES LAWS OF THE SOUTHEEN AND SOUTH-WESTERN STATES. 
 
 By the statutes of the state of Delaware it is declared that 
 any contract or consent pursuant to which a tenant shall enter 
 into, or continue in possession of lands, tenements or heredita- 
 ments, under an agreement to pay rent, shall be a demise ; and 
 where no term is expressly limited, a demise is construed to be a 
 fee for a year, except of houses and lots usually let for a less time. 
 No demise, except it be by deed, is effectual for a longer term than 
 one year. If there be a demise for a term of one or more years, 
 and three months or upward before the end of the term, either 
 the landlord do not give notice in writing to the tenant in pos- 
 session to remove, or the tenant do not give notice to the land- 
 lord of his intention to remove from the demised premises, the 
 term will be extended for another year. If the tenant hold over 
 the demised premises after the end of the term, and after the 
 notice mentioned, the possession of sucli demised premises may be 
 recovered by the landlord. (Rev. Code, 1852, ch. 120, §§ 1-6.) 
 
 It has been held that if the defendant be a tenant of the 
 plaintiff by any compact or assent amounting to a leasing or an 
 occupation subject to rent, the plaintiff cannot bring ejectment 
 without giving the tenant notice to quit ; but any disclaimer of 
 
EJECTMENT AS BETWEEN LANDLOBB AND TENANT. 363 
 
 the relation of landlord and tenant made prior to the demise, 
 dispenses with the notice ; a disclaimer subsequent to the demise 
 may be considered evidence to dispense with the tenancy. {Hor- 
 sey^s Less&e v. Horsey, 4 Harring. K. 517.) 
 
 If the tenant, after giving three months' notice in writing of his 
 intention to deliver up the demised premises to his landlord at the 
 end of the year, continue in possession' without the consent of the 
 landlord, he may be proceeded against by action of ejectment. 
 {Morris v. Burton, 1 Houston's E. 213.) 
 
 In Maryland no estate in lands for above seven years, can pass 
 or take effect except by deed executed, acknowledged and re- 
 corded. (1 Md. Code, art. 24, § 1.) 
 
 Tenancies at will, and for one or more years, are terminated in 
 Maryland by a notice in writing one month before the tenancy 
 expires, to the tenant in possession, to remove from and quit 
 the premises demised ; but tenancies from year to year can only 
 be terminated by a notice of six months, in writing, given by the 
 landlord or his agent or representative, to the tenant, before the 
 expiration of the current year. (1 Md. Code, art. 53, § 6.) 
 
 The tenant in fee of a lot bounding on the basin of the city of 
 Baltimore, leased the same for a term of years, reserving a right 
 to distrain and re-enter; and granted his lessee "tlie exclusive 
 right of extending, not exceeding, etc., into the water, any and 
 every part of said lot which fronted the basin, provided he could 
 obtain permission for the purpose from the mayor, etc., of Balti- 
 more, or the legislature of the state. The reversion of the lot 
 was rented to a party who recovered the leased premises by eject- 
 ment for non-payment of rent, and applied to the corporation of 
 Baltimore for liberty to extend the lot into the basin, according to 
 the original lease, which was granted, and the extension made \ it 
 was held that by the forfeiture of the lease, consequent upon the 
 recovery in ejectment, no right reverted to the first tenant ; and 
 further, that if the lessee had made the improvement under the 
 permission granted by his lease, the lessor and his assigns could 
 have distrained or re-entered upon it, as upon the original lot. 
 {The City of Baltimore v. White, 2 Gill's K. 444.) 
 
 In the state of Virginia, a grantee or assignee of any land held 
 to lease, or of the reversion thereof, and his personal representa- 
 tives or assigns, enjoy against the lessee, his heirs, personal repre- 
 sentatives or assigns, the like advantage by action or entry, for any 
 
364 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 forfeiture, which the grantor, assignor or lessor, or his heirs, might 
 have enjoyed. 
 
 It is also provided by statute, that a tenancy from year to year 
 may be terminated, by either pai'ty giving notice in writing, prior 
 to the end of any year, for three months, if it be of land within, 
 and for six months, if of land without a town, of his intention to 
 terminate the same. "Where such notice is to the tenant,' it may be 
 served Upon him, or upon any one holding under him the leased 
 premises, or any part thereof. "Where it is by the tenant, it may 
 be served upon any one who, at the time, owns the premises in 
 whole or in part, or the agent of such owner, or according to the 
 common law. But this provision does not apply where, by special 
 agreement, no notice is to be given ; and no notice is necessary 
 from or to a tenant whose term is to end at a certain time. 
 
 If any tenant, from whom rent is in arrear and unpaid, shall 
 desert the demised premises, and leave the same uncultivated or 
 nnoecupied, without goods thereon subject to distress sufficient to 
 satisfy the rent, the lessor or his agent may post a notice in writing 
 upon a conspicuous part of the premises, requiring the tenant to 
 pay the rent within one month. If the rent be not paid within 
 that time, the lessor is entitled to possession of the premises, and 
 may enter thereon, and the right of such tenant thereto is thence- 
 forth at an end. (Code of 1860, tit. 41, ch. 138, §§ 1, 5, 6.) 
 
 And the statute further provides, that any person who shall have 
 a right of re-entry into lands by reason of any rent, issuing there- 
 out, being in arrear, or by reason of the breach of any covenant or 
 condition, may serve a declaration in ejectment on the tenant in 
 possession, where there shall be such tenant, or, if the possession 
 be vacant, by affixing the declaration upon the chief door of any 
 messuage, or at any other notorious place on the premises, which 
 service is in lieu of a demand and re-entry ; and, upon proof to 
 the court by affidavit, in case of judgment by default, or upon 
 proof on the trial, that the rent claimed was due, and no sufficient 
 distress was upon the premises, or that the covenant or condition 
 was broken before the service of the declaration, and that the 
 plaintifif had power thereupon to re-enter, he can recover judgment 
 and have execution for such lands. (Code of 1860, tit. 41, ch. 138, 
 §16.) 
 
 The statute then provides a way for the defendant to redeem 
 the land from the forfeiture ; and also a way to prevent the judg 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 365 
 
 ment of forfeiture in the first instance, which is similar to the 
 practice under the Eevised Statutes of New York. Indeed, it 
 would seem that the provisions of the Virginia statute in this 
 regard were taken from the Revised Statutes of New York, vol- 
 ume 2, page 505, article 2, sections 30 to 38 inclusive, and are 
 given in the statement herein of the laws of New York respecting 
 landlord and tenant. {Ante, ch. 16.) The laws of Yirginia on 
 the sxibject are found in the Code of 1860, title 41, chapter 138, 
 sections 16 to 25. 
 
 In case the time for re-entering be specified in the instrument 
 creating the rent, covenant or condition, the proceedings in eject- 
 ment must not be begun until such time shall have elapsed. (Code 
 of 1860, tit. 41. ch. 178, § 21.) 
 
 It has been held, that if a tenant claims to hold the premises in 
 dispute adversely to his landlord, he is not entitled to notice to 
 quit. [Harrison v. Middleton, 11 Gratton's E. 527.) 
 
 If a grant be made, reserving a yearly rent, with the condition 
 that the grantor may re-enter if the rent be not paid, after demand 
 made upon the premises, if no property is found on the land 
 whereof distress can be made, the grantor, upon demand made, 
 and failure to pay, no property to distrain being found on the 
 land, may re-enter, and grant over to another. {Warterby v. 
 Moran, 3 Call's E. 424.) 
 
 In the state of North Carolina, a lease for three years or less is 
 good without being in writing ; but a lease for a term exceeding 
 three years must be in writing and recorded, in order to be 
 efi'ectual against subsequent purchasers without notice, or cred- 
 itors. (Rev. Code, ch. 37, § 26.) And in that state a tenancy 
 from year to j'ear is terminated by the service of a notice to quit 
 at least six months before the expiration of the year, and the same 
 must expire at the end of the year. As there is no statute upon 
 the subject in North Carolina, the common law rule is held to 
 apply the same as is the rule in England and several others of the 
 states; and a tenancy at will is terminated in the same way. 
 ( Tide Den v. Mcintosh, 4 Iredell's E. 291.) 
 
 In the state of South Carolina, leases for more than three 
 years must be in writing and signed by the parties, or their agents 
 lawfully authorized, the same as in North Carolina. (Brevard's 
 Digest, title 84. Vide Wallace v. McCollough, 1 Eich. Eq. 
 E. 417.) 
 
366 LAW OF EJECTMUNT AND ADVERSE ENJOYMENT. 
 
 Leases for a longer term than twelve months in South Carolina 
 are not valid in law against the rights of third persons, unless 
 recorded in the office of mesne conveyances within three months 
 after being executed. Parol leases give no right of posses- 
 sion for a longer period than twelve months after entered into 
 between the parties ; and all parol leases are understood as 
 for one year, unless a shorter term be stipulated for. (Laws of 
 1817, p. 36.) 
 
 In the state of Georgia, contracts creating the relation of land- 
 lord and tenant for any time not exceeding one year, may be by 
 parol, and if made for a greater time will have the effect of a 
 tenancy at will. When no time is specified for the termination 
 of the tenancy, the law construes it to be for the calendar year, 
 but if it is expressly a tenancy at will, then either party may 
 terminate it at will. Two months' notice is necessary from the 
 landlord to terminate a tenancy at will ; but one month's notice 
 only is necessary from the tenant. The tenant must deliver pos- 
 session at the expiration of his term, and if he fails to do so, 
 a summary remedy is given to the landlord. (Code of 1862, 
 §§ 2254, 2256, 2264, 2265.) 
 
 In Florida, if any person leasing or re-renting any land or 
 house, shall fail to pay the rent at the time it becomes due, the 
 statute provides that it shall be lawful for the lessor immediately 
 thereafter to enter and take possession of the property so by him 
 rented or leased. (Thompson's Dig. p. 397.) There does not 
 seem to be any provision of the statute for terminating a tenancy 
 at will, or for years, and, tlierefore, the common law rule in such 
 cases is probably recognized in that state. The statute prescribes 
 a summary method for getting possession of the demised premises 
 on default of the tenant to pay tlie rent as agreed, in which case 
 the landlord must give three days' notice to the tenant requiring 
 payment of the rent before he can institute proceedings ; and 
 this seems to be the only provision of the statute in respect to the 
 notice in cases of landlord and tenant. 
 
 In the state of Alabama, a lease for lands for more than one 
 year must be in writing, and no leasehold estate can be created 
 for a longer time than twenty years. (Rev. Code of 1867, §§ 1581, 
 1862.) In the action to recover lands or the possession thereof, 
 brought against the tenant, tlie landlord must, on his own motion, 
 be made defendant. (Rev. Code, § 2606.) 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 367 
 
 The Alabama Code contains no provision in respect to termi- 
 nating tenancies of uncertain duration by notice, and hence the 
 common law doctrine prevails there. A tenancy at will is deter- 
 minable at the will of the lessor; and one mode of determining it 
 is, by the lessee's entering upon the land, and there by words de- 
 claring it at an end. But the courts of Alabama hold that such 
 words do not terminate an estate at will until the lessee has notice 
 declaring tliat the condition of estates at will has been meliorated, 
 80 far as to give the tenant a right to notice to quit. {Coolc v. 
 Cook, 28 Ala. E. 660.) 
 
 In Mississippi, a lease for more than one year must be in 
 writing, sealed and delivered ; and as against a purchaser for 
 value without notice, the lease for a longer period than one year 
 must also be acknowledged and recorded, the same as other con- 
 veyances of real estate. (Rev. Stat. 1857, p. 309, art. 19.) 
 
 In all cases in which a notice is requii-ed to be given by the 
 landloi'd or tenant to determine a tenancy in Mississippi, two 
 months' notice in writing must be given, where the holding is 
 from year to year, and one month's notice must be given when 
 the holding is by the half or quarter year, and when the letting is 
 by the month or by the week, one week's notice in writing is re 
 quired. (R. S. p. 344, § 21.) And the grantee or assignee of 
 lands let to lease are given the same remedies and advantages 
 against the lessor, by entry for the non-payment of rent, or for 
 doing any waste, or other forfeiture, as the lessors themselves 
 might have had. (R. S. p. 342, art. 15.) 
 
 The courts of the state hold that a contract for the lease of 
 lands for a longer period than one year is absolutely void by their 
 statute'of frauds and perjuries, if not in writing. {Ph.ipps v. In- 
 gerson, 41 Miss. R. 256.) 
 
 In the state of Tennessee, it is provided that no action shall be 
 brought u^on any lease for land for a longer term than one year, 
 unless the same is in writing; and all leases for more than three 
 years from the time of making the same may be registered. (Code 
 of 1858, §§ 1758, 2030.) And when the lessee of a dwelling-house 
 is convicted of keeping the same as a house of ill fame, the lease 
 or contract for letting such house is, at the option of the lessor, 
 void ; whereupon the possession of the demised premises may be 
 recovered the same as against a tenant holding over after the 
 expiration of his term. (Code of 1858, § 4846.) 
 
368 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The courts hold that a parol lease for more than one year cannot 
 be enforced, being within the statute of frauds, but that the same 
 is good for one year. The courts of Tennessee also hold that a 
 lease, void by the statute of frauds, as to its duration, will regulate 
 the terms of the tenancy, in respect, to the rent, and the time of 
 the year when the tenant is to quit;, and if the tenant .holds over 
 after the expiration of his term, without making a new contract, 
 he holds upon the former terms, and the relation between the par- 
 ties will be that of a tenancy from year to year, and each party 
 must give the other reasonable notice of an intention to terminate 
 the estate. {Mitchell v. Cummings, 1 Coldwell's E. 354.) 
 
 The Code of Tennessee does not seem to provide for the termin- 
 ation of tenancies for uncertain terms, and, in the absence of any 
 statutory provision upon the subject, the common law, doubtless, 
 will govern in such cases. 
 
 In the state of Kentucky the statute provides that no action 
 shall be brought to charge any person, among other things, upon 
 any contract for the sale of real estate, or any lease thereof for 
 longer term than one year. (1 Eevised Statutes, eh. 22, § 1, sub. 6.) 
 A contract for a lease, as distinguished from a lease itself, is an 
 executory contract to be performed in future by the making of 
 the lease, and if the lease is, by the contract, to be for one year or. 
 less, and is to be made within one year, an action may be main- 
 tained for a breach of it, as per Marshall, Chief Justice, in a case 
 which does not seem to be reported. {Chinn v. Bland, 1 E.. S. 
 p. 266, note.) 
 
 The statutes of Kentucky provide that no tenant for a term not 
 exceeding two years, or at will, or by sufferance, shall assign or 
 transfer his term or interest, or any part thereof, to another with- 
 out the written assent of the landlord ; and if any tenant shall 
 violate this provision, the landlord, after giving ten days' notice 
 to quit possession, will have a right' to re-enter the premises and 
 take possession thereof, or to oust tlie tenant, sub-tenant, or under- 
 tenant, by the proper procedure. (2 E. S. ch. 56, §§ 2, 3.) 
 
 In Kentucky either party may terminate a tenancy from year to 
 year, by giving notice in writing, of his intention to terminate the 
 same, of not less than three months before the end of the year if 
 for lands in a city or town, and six months if elsewhere. A ten- 
 ancy at will or by sufferance may be terminated by the landlord 
 giving one month's notice in writing to the tenant requiring him 
 
EJECTMENT AS BETWEEN LANDLORD AND TENANT. 369 
 
 to remove ; and no notice to quit is necessary, from or to a tenant 
 whose term is to end at a cei'tain time, or where, hy special agree- 
 ment, notice is dispensed with. (2 E. S. ch. 56, §§ 4, 5, 8.) 
 
 The courts of the state hold that the ancient tenancies at will 
 are now tenancies from year to year, but tliat a tenant may hy 
 contract still be strictly a tenant at will. {Sullivan v. Enders, 
 3 Dana's R. 66.) A lease for five years is held to be valid, though 
 not recorded, and the lessor may hold during the term. {Casey v. 
 Oregory, 13 B. Monroe's E. 507.) A landlord may maintain eject- 
 ment against his tenant, after the termination of his lease, witliout 
 showing any title but his lease. {Mattox v. Helm, 5 Littell's E. 185.) 
 
 It has been held that a tenant of a house, at a fixed compensation 
 for his labor by the month (and house furnished), determines his 
 tenancy by failing to work, and is not entitled to notice to quit. 
 In such a case ^he right of occupancy is held to be incident to the 
 contract of hire, and ceases whenever, by mutual consent, or by 
 the fault of the tenant, tlie services themselves cease. From that 
 time the tenant can no more claim the right to occupy the house, 
 than he could claim any other portion of his hire; and he would 
 be in no better condition than a strict tenant at will, who has, by 
 his own act, terminated the tenancy, and would, at most, be enti- 
 tled only to a reasonable time for removing from the house. 
 {McGee v. Oibson, 1 B. Monroe's E. 105.) 
 
 Where the lease is by parol for more than one year, and the ten- 
 ant holds over, it is held that no notice to quit is necessary. {Har- 
 rison V. Marshall, 4 Bibb's E. 525.) 
 
 It has been held that a demand of possession terminates a tenancy 
 at will, and if made six months before the expiration of the year, 
 is sufficient notice to quit. {Ross v. Garrison, 1 Dana's E. 36.) 
 And it has also been held that a stipulation in a lease that the 
 bare non-payment of rent for ten days, shall give a right to sue 
 without notice, will be sufficient to dispense with the necessity of 
 a demand or notice before suit. {Eiohart v. Bargas, 12 B. Mon- 
 roe's E. 464.) 
 
 In the state of Louisiana it is understood that they are at work 
 revising their civil code and their statutes. The present revised 
 statutes of the state and civil code, provide a summary method of 
 dispossessing tenants who hold over after their term has expired ; 
 and by the present civil code it is provided that the lessee of premi- 
 ses may be expelled from the tenament if he fails to pay the rent 
 47 
 
370 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 when it becomes due. (Civil Code, art. 2682.) It is also pro- 
 vided by the civil code, now in force in Louisiana, that leases may 
 be eitlier verbal or written, but no lease of real estate can be 
 proved by parol. (Civil Code, art. 2653, as amended by Laws of 
 1865, No. 42, p. 80.) And if the renting of a house or other 
 edifice, or of any apartment, has been made without fixing its 
 duration, the lease will be considered to have been made by the 
 month, and the party desiring to put an end to it, must give a 
 notice in writing, at least fifteen days before the expiration of 
 the month which has begun to run. (Civil Code, arts. 2655, 2656.) 
 And it has been judicially declared that where thei-e is no special 
 agreement as to the extent of the lease, it is to be presumed to 
 have been a monthly one. [Paquetel v. Gauche, 17 La. An. K. 63.) 
 
 Prior to the amendment of article 2653 of the civil code, a 
 verbal contract of lease could be proved by parol, and the supreme 
 court of the state held that this amendment can only prevent parol 
 evidence of such contracts as have been made since its passage. 
 {McDonald v. Stewart, 18 La. An. E. 90.) 
 
 If the tenant either of a house or of a room, should continue in 
 possession for a week after his lease has expired, without any 
 opposition being made thereto by the lessor, the courts hold that 
 the lease shall be presumed to have been continued, and he cannot 
 be compelled to deliver up the house or room without the notice 
 directed by article 2656 of the civil code. {Classen v. Carrol, 18 
 La. An. K. 267.) 
 
 The lease of a predial estate, where the time has not been speci- 
 fied, is presumed to be for one year ; and if after the same has 
 expired, the farmer still continues to possess the same daring one 
 month, without any step having been taken either by the lessor or 
 a new lessor, to cause him to deliver up the possession of the 
 estate, the former lease will continue for the year next following 
 the expiration of the lease, and only that year. If the tenant 
 either of a house or a room should continue in possession for a 
 week after his lease has expired, w^ithout any opposition being 
 made thereto by the lessor, the lease will be presumed to have 
 been continued, and he cannot be compelled to deliver up the 
 house or room without having received the legal notice or warning 
 directed by article 2656, before referred to. This is declared by 
 the statute as well as decided by the courts. (Civil Code, arts. 
 2657, 2658, 2659.) 
 
EJECTilENT AS BETWEEN LANDLORD AND TENANT. 3Y1 
 
 To the contract of lease in Louisiana, the statute makes three 
 things absolutely necessary ; the thing, the price, and the consent. 
 (Civil Code, §§ 2640, 2641.) And it has been held by the supreme 
 court, that the mere occupancy of property does not necessarily 
 imply the relation of lessor and lessee. {Jordan v. Mead, 19 La. 
 An. R 101.) 
 
 A party in possession of property as lessee, when sued in a 
 petitory action for the property, should make his lessor a party 
 defendant to the action, and ask to be discharged; lie cannot 
 defend the suit by calling in warranty his lessor's vendee, without 
 making the lessor a party, or entering an appearance for him. 
 ( Young v. Ghamberlin, 14 La. An. R. 687.) 
 
 In Arkansas the law requiring leases of lands and tenements for 
 a longer term than one year, to be in writing, is the same as in 
 Louisiana ; and the effect of a lease not put in writing, is declared 
 to have the force and effect of leases or estates at will only, and in 
 no case to have any greater effect or force than as leases not exceed- 
 ing the term of one year. (Eng. Dig. ch. 73, §§ 1, 10.) 
 
 By the statutes of Arkansas, any tenant on whom a summons 
 in ejectment to recover the tenements by him held shall be served, 
 must forthwith give notice thereof to the person, or any agent of 
 the person, of whom such tenant holds. (Eng. Dig. ch. 96, § 6.) 
 And it is also provided, that whenever a half-year's rent, 
 or more, is in arrear from a tenant, the landlord, if he has a sub- 
 sisting right by law to re-enter for the non-payment of said rent, 
 may bring an action of ejectment to recover the possession of the 
 demised premises. If the summons in such action cannot be 
 served in the ordinary way, it may bo served by affixing a copy 
 thereof on a conspicuous part of the demised premises, where it 
 may be conveniently read ; and the service of such summons is 
 deemed and will stand instead of a demand of the rent in arrear, 
 and of a re-entry on the demised premises. (Eng. Dig. ch. 96, 
 §§ 15, 16, 17.) 
 
 In the state of Texas it is provided that no estate in lands for a 
 term of more than five years, shall be conveyed from one to another, 
 unless the conveyance be declared by writing, sealed and delivered, 
 although a scroll is recognized as a seal. (Oldham and White's 
 Dig. art. 211, and vide Flemming v. Powell, 1 Tex. R. 225. Eng- 
 lish V. Helms, 4 ib. 228. Clopten v. Pridgen, 8 ib. 308.) And it 
 is also provided by statute, that any person holding over any lands 
 
372 LAW Of EJECTMENT AND ADVERSE ENJOYMENT. 
 
 or other real property, after the determination of the time for 
 which such lands or real property were let to him, or to the person 
 under whom he claims, after demand made in writing for posses- 
 sion thereof, by the person or persons entitled to such possession, 
 shall be adjudged guilty of forcible entry and detainer, (Old. and 
 "White's Dig; art. 932.) 
 
 It has been held by the court that in an action of forcible entry 
 and detainer under the statute, the right of possession must be the 
 question, and not the title to the land ; but in case of landlord and 
 tenant, the tenant will be estopped from questioning the title of 
 the landlord, but the question, however, to be litigated is only the 
 right of possession. ( Warren v. Kelly, 17 Tex. E. 544.) 
 
 In California, the statute makes all leases for a longer period 
 than ten years void, except that leases for town or city lots may be 
 for a term not exceeding twenty j'ears. (Wood's Dig. 1860, p. 110.) 
 The statutes of California provide that whenever there is a ten- 
 ancy at will, or by sufferance, created by the tenants holding over 
 his term, or otherwise, the same may be terminated by the laud- 
 lord's giving one month's notice in writing to the tenant, requir- 
 ing him to remove from the premises ; which notice must be served 
 by delivering the same to the tenant, or to some person of proper 
 age residing on the premises ; or, if the tenant cannot be found, 
 and there be no such person residing on the premises, the same 
 may be served by aiRxing the same on a conspicuous part of the 
 premises, where it may be conveniently read. At the expiiation of 
 one month from the service of such notice, the landlord may re- 
 enter or maintain ejectment, or proceed in the manner prescribed 
 by law to remove such tenant, without any other or further notice 
 to quit. (Laws of 1861, ch. 462, g§ 1, 2, 3.) And it is also pro- 
 vided, that, in all leases of lands or tenements, or any interest 
 therein, from month to month, the landlord may, upon giving 
 notice in writing, at least fifteen days before the expiration of the 
 month, change the terms of the lease, to take effect at the expira- 
 tion of said month ; and said notice, when served upon the tenant, 
 will of itself operate and be effectual to create and establish, as' a 
 part of the lease, the terms, rents, and conditions specified in the 
 notice, if the tenant continue to hold the premises after the expira- 
 tion of the month, and in all leases of lands or tenements for a 
 month, or any term less than one year, and the tenant holds over 
 his term by consent of his landlord, the tenancy will be construed 
 
TSB ANCIENT PRACTICE IN EJECTMENT. 373 
 
 to be a tenancy from month to month, or a tenancy for such term 
 less than a year, as the case may be. (Laws of 1863, ch. 411, § 6.) 
 This concludes the summary which it was proposed to give of 
 the statutes of the several states, in respect to the determining 
 of tenancies for uncertain periods, and the action to recover the 
 possession of real property, as between landlord and tenant. It 
 has been the design to give the substance of the statutes now in 
 force upon the subject, but from the fact that the legislation of 
 several of the states, especially in the south, is undergoing some 
 change, it is possible that in some instances a sightly different rule 
 may be ultimately established than what is here given. It is 
 thought, however, that tlie summary here given is quite accurate, 
 and especially so as to all of the northern and western, and most 
 of the southern states; and that the same can be relied upon, 
 except as the law may be modified by after legislation. 
 
 CHAPTEE XIX. 
 
 THE ANCIENT PEACTICE IN THE ACTION OF EJECTMEN-r, AND THE OASES 
 IN ■WHICH IT IS STILL NEOESSAEY IN ENGLAND. 
 
 Me. Adams, in his treatise on the princii^les and practice of the 
 action of ejectment, has a short chapter explaining the ancient 
 practice in the action, and giving the cases in which it is, still 
 necessary under the English jurisprudence. But the subject is of 
 little or no practical importance in this country, except as a mere 
 •matter of history ; and for that object the matter will be touched 
 upon here. 
 
 In England, where the remedy by ejectment is prosecuted in an 
 inferior court, the fictions of the modern system are inapplicable, 
 for inferior courts have not the power of framing rules for confess- 
 ing lease, entry and ouster, nor the means, if such rules were 
 entered into, of enforcing obedience to them. Where, also, the 
 premises are vacated and wholly deserted by the tenant, and his 
 place of residence is unknown, the modern common law practice, 
 which requires an affidavit of the service of a declaration in eject- 
 ment upon the tenant in possession, before judgment can be 
 obtained against the casual ejector, cannot be adopted. But strict 
 
374 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 proof of these facts will be required, and if it appear that the 
 premises were not wholly deserted, or that the plaintiff's lessor 
 knew where the tenant lived, a judgment obtained by means of 
 the ancient practice will be set aside. {Savage v. Dent, Strange's 
 E. 106i. Jones v. March, 4 Term E. 464. Adams on Eject- 
 ment, 199.) 
 
 When, therefore, the party brings his action in a superior court, 
 the possession being vacant, and the lessor's abode unknown, and 
 when he is desirous of trying his title in a court of inferior juris- 
 diction (but in these cases only), all the forms of the ancient prac- 
 tice must be observed ; a lease must be sealed upon the pi'emises ; 
 an ouster actually made ; and the parties to the suit will be real 
 and not imaginary persons. 
 
 The proceedings are as follows : A, the party claiming title, 
 enters upon the land before the first day of the term of which the 
 declaration is to be entitled, either in person or by attorney ; and, 
 while on the premises, executes a lease of them to B (any person 
 who may accompany him), and delivers to him the possession by 
 some one of the common modes. C (some other person) then enters 
 upon the premises and ejects B therefrom, and, having done so, 
 remains upon them while B delivers to him a declaration in eject- 
 ment, founded upon the demise contained in the lease, and in all 
 respects like the declaration in the modern proceedings, except that 
 the parties to it are real instead of fictitious persons ; B being the 
 plaintiff, A the lessor, and C the defendant. To this declaration a 
 notice is added, signed by B's attorney, and addressed to C, requir- 
 ing him to appear and plead to the declaration, and informing him 
 that, if he do not, judgment will be signed against him by default. 
 If it be necessary to join the wife in the demise, the lease must be * 
 executed by the parties, in their proper persons, because a feme 
 covert cannot constitute an attorney. An attorney cannot be the 
 lessee to whom the lease is executed, because the rules of court 
 provided, " that, for the prevention and maintenance and brocage, 
 no attorney shall be lessee in ejectment." 
 
 The suit then proceeds as against the casual ejector, and, if the 
 action be brought in a superior court, no person claiming title will 
 be admitted as defendant in his stead. Assuming, therefore, the 
 right to the premises to be disputed, the party sealing the lease 
 must, in the first instance, recover the possession, and the party 
 claiming title must afterward bring a common ejectment against 
 
TRE ANCIENT PRACTICE IN EJECTMENT. 375 
 
 him to try his right. {Ex parte Beaueham,p, Barn. E. 1Y7. Same 
 Case, Bailer's Nisi Prius, 96.) 
 
 When the proceedings were in the queen's bench, judgment 'was 
 moved for against the defendant, upon an affidavit of the sealing 
 of'the lease, ouster of the plaintiff, etc., as in a common ejectment. 
 {Smartley v. Ilenden, 1 Salk. E. 255.) And unless the defendant 
 appeared and pleaded, judgment would be signed against him 
 accordingly. In the common pleas, a rule to plead had to be 
 given on the first day of term, as in other actions, and judgment 
 signed at the expiration of the rule. (2 Sell. Prac. 131.) 
 
 It seems to be immaterial, as far as the forms of sealing the 
 lease, etc., are concerned, whether the action be commenced in a 
 superior or inferior court ; but the subsequent proceedings in 
 inferior courts must of course depend upon the general practice in 
 them in other actions, and cannot be explained here. How far it 
 may be neGessary to give the tenant in possession notice of the 
 claimant's proceedings, in an ejectment brought in an inferior 
 court, may appear doubtful, says Mr. Adams, when it is remem- 
 bered that such notice was only requisite in the superior courts, in 
 consequence of a rule made for that particular purpose ; but it is 
 regarded as more prudent to conform to the general practice 
 in this respect, and it seems the notice need not be given until 
 after the entry, and execution of the lease. (Adams on Eject- 
 ment, 262.) 
 
 If an ejectment be brought in an inferior court, the defendant 
 is entitled to remove it, by certiorari or habeas corpus, to a supe- 
 rior court. {Highman v. Barlow, Barn. E. 421. Allen v. For- 
 man, 1 Siderfin's E. 313.) And if the action is thus removed, 
 and the plaintiff in ejectment declares against the casual ^'ector, 
 the tenant in possession is entitled to the same privilege of con- 
 fessing lease, entry and ouster, and defending the action, as if the 
 plaintiff had originally declared in the superior court ; indeed, by 
 the practice in such cases, the plaintiff usually declares de novo in 
 the court above. (2 Bac. Abr. 166.) 
 
 An ejectment brought in an inferior court, on a lease executed 
 and sealed on the premises, which were within the jurisdiction of 
 that court, may be removed into the superior court, by certiorari, 
 'if there be any ground for believing that it cannot be impartially 
 tried in the inferior court. {Patterson v. JEades, 3 Barn. & Ores. 
 E. 550.) 
 
376 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 If the ejectment be removed from an inferior to a superior 
 court, the superior court will not grant a procedendo, if there be 
 reason for believing that an impartial trial cannot be had in the 
 inferior court, or upon other special grounds ; and although the 
 point decided in the case in Barnwall and Creswell is as stated 
 above, yet it is to be inferred from the reasoning of the judges, 
 that a writ of certiorari is a matter of course, and that a proce- 
 dendo will in no case be granted. 
 
 It is 'said in Bacon's Abridgement that if & habeas corpus be 
 brought to remove a cause in ejectment out of an inferior court, 
 and the lands lie within their jurisdiction, and the lessor of the 
 plaintiff seals a lease on the premises, the courts above will grant 
 a procedendo, because the title of the land is a local matter, prop- 
 erly within the jurisdiction of the court below, when, if they pro- 
 ceed regularly, they shall not be prohibited ; but if the lessor has 
 not sealed a lease on the premises, or if the inferior court has not 
 an exclusive jurisdiction of the case, a procedendo will not bo 
 granted. (2 Bac. Abr. 166.) 
 
 But, if the lands lie partly within, and partly without the 
 jurisdiction of the inferior court, or as it is expressed in Bacon's 
 Abridgement, if the lands lie partly within the cinque ports, and 
 partly without, the defendant cannot plead alone the jurisdiction 
 of the cinque ports, or of such inferior court, for though the land 
 be local matter, the demise is transitory and triable anywhere. 
 Therefore, though the plaintiff may lay his action for that which 
 lies within an inferior jurisdiction in the court below, if he takes 
 proper measures for that purpose, yet if he will lay it above, since 
 the demise is transitory, the defendant cannot stop his proceeding, 
 because the courts above for such transitory matters have a proper 
 jurisdiction. (2 Bac. Abr. 166.-) 
 
 If the defendant in an inferior court comes into a rule to con- 
 fess lease, etc., and the cause be removed by habeas corpus, and 
 the judge of the inferior court grants an attachment against the 
 defendant for disobedience to the rule, the superior court will 
 grant an attachment against such judge for compelling obedience 
 to their rules, and thereby obstructing the business of the superior 
 courts, since the defendant is not bound by the rule he entered in 
 the inferior court, such rule being only the practice of the superior ' 
 courts. (2 Bac. Abr. 166.) 
 
THE ANCIENT PRACTICE IN EJECTMENT. 377 
 
 Aa the plaintiff, in the ancient practice, is the person actuaHy 
 m existence, his death would, of course, abate the action, accord- 
 ing to the general rules of law ; but as the courts look upon the 
 lessee of the plaintiff to be the person concerned in interest, they 
 will not suffer him to be deprived of his remedy by such an event. 
 If, therefore, there be any one of the same name with the plaintiff, 
 he will be presumed to have been the person ; and it seems also to 
 have been held to be a contempt of the court to assign for error 
 the death of the nominal plaintiff. {Addison v. Otvmy, 1 Mod. 
 R. 250, 252. Moore v. Goodright, Strange's E. 899.) 
 
 In like manner, before the introduction of the modern practice, 
 it was said that if the plaintiff released to one of the tenants in 
 possession, who had been made defendant, such release would be 
 a good bar, because the plaintiff could not recover against his own 
 release, since he was the plaintiff upon the record ; but the courts 
 considered such a release as a contempt, and it is said that a plea 
 of this nature does not appear ever to have occurred in practice. 
 {Peto V. Cheny, 2 Brown's E. 128. Anonymous, 1 Salk. R. 260.) 
 In England, before the present common law procedure act, a re- 
 lease by a lessee of the plaintiff was no bar. They then looked 
 to the plaintiff on the record. They considered the nominal 
 plaintiff as the real party. {Byne v. Brewer, 4 Maule '& Selw. 
 E. 301.) But the courts of the state of l!^ew York, from a very 
 early period, have been in the practice of considering the parties 
 as they really are ; the lessees as the parties in interest, and the 
 nominal plaintiff as an ideal and fictitious person ; and the E"ew 
 York courts endeavor to practice upon the maxim, that fiction 
 shall do no prejudice. In this respect, the practice in New York 
 has always beeri. more in accordance with the ancient than the 
 modern common law practice in England. 
 
 In a' very early case in New York, it was decided that a release 
 after issue joined in ejectment may be pleaded puis darrein con- 
 tinuance, and if well pleaded is a bar to the action. In that case 
 there were two lessors. The plaintiff showed title in one cf the 
 lessors, and rested. The defendant showed a conveyance from the 
 same lessor to the landlord of the defendant, dated after issue joined. 
 The plaintiff then produced a deed from the same lessor to the 
 other lessor, older than the deed to the defendant's landlord ; but 
 it appeared that when this last deed was executed, the defendant 
 was in possession, holding adversely; on that ground the court 
 48 
 
378 LAW OF EJECTMENT AND ADVERSE ENJOTMENT. 
 
 held the plaintiff could not recover on it. It therefore became 
 necessary to decide whether the plaintiff could recover upon the 
 title of the first-named lessor, notwithstanding his deed to the land- 
 lord of the defendant. The objection was raised, that such a release 
 cannot be pleaded or given in evidence, because the lessor is not a 
 party to the record ; but it was urged that it was void for main- 
 tenance. The court held that even if it was an act of maintenance, 
 which they did not decide, yet it was good between the parties, 
 and that such lessor could not recover against his deed, but that 
 he was estopped by it ; that the only objection which could have 
 been made at the trial was, that it was not pleaded. In the action 
 of ejectment, they say, we must look steadily to the legal title. 
 {Jackson v. Duinont, 9 Johns. E. 55. Vide, also, to the same effect, 
 Jackson V. Wheeler, 10 ib. 164. Jackson v. Foster, 12 ib. 490. 
 Jackson v. MoClaskey, 2 Wend. E. 541.) It will be discovered, 
 wLen the subject is considered, that the present practice in New 
 York is the same as when the cases above cited were determined. 
 
 It has been decided by the supreme court of the United States, 
 that although an action of ejectment is founded in fiction, yet for 
 certain purposes it is considered in the same manner as if the 
 whole proceedings were real ; for all the purposes of the suit the 
 lease is to be deemed a real possessory title. It was accordingly 
 held that a conveyance by the plaintiff's lessor during the pend- 
 ency of an action of ejectment, can only operate upon his rever- 
 sionary interest, and cannot extinguish the prior lease. The 
 existence of such a lease is a fiction ; but it is upheld for the 
 purpose of justice. If it expire during the pendency of a suit, 
 the plaintiff cannot recover his term at law, without procuring it 
 to be enlarged by the court, and can proceed only for antecedent 
 damages. {Robeson v. Campbell, 3 "Wheaton's E. 212.) 
 
 The casual ejector is also in the ancient practice a real person, 
 but tbe court will not allow him to confess a judgment ; and where, 
 upon proceedings on a vacant possession, the casual ejector gave a 
 warrant of attorney for this purpose, the court set the judgment 
 aside. {Hooper v. Dak, Strange's E. 531.) 
 
 In many respects the practice in this country in the action of 
 ejectment has always been quite similar to the ancient practice in 
 England ; and it was quite early decided that the strict principles 
 applicable to the proceedings in ejectment as for a vacant posses- 
 sion in England could not, without manifest landship and incon- 
 
THE MODERN ACTION OF EJECTMENT. 379 
 
 venience, be applied to the unsettled lands in this country. {Salt- 
 onstall V. White, 1 Johnson's Cases, 221.) Accordingly, where the 
 lessor of the plaintiff proceeded as for a vacant possession, and 
 obtained a regular judgment by default, it was set aside, and the 
 person claiming to be owner of the land, on the affidavit of merits, 
 was admitted a defendant, on payment of costs and stipulation to 
 admit he was in possession at the commencement of the suit. 
 {Wood V. Wood, 9 Johns. E. 257.) 
 
 CHAPTEE XX. 
 
 OF THE MODERN ACTION OF EJECTMENT — THE DECLAEATION — OF ENTIT- 
 LING THE SAME THE VENTTE — THE DEMISE DESOEIPTION OF THE 
 
 PEBMISES CLAIMED — THE ENTEY THE OUSTEE AMENDING THE 
 
 DECLAEATION. 
 
 The practical proceedings in the modern action of ejectment, 
 vary from the proceedings in all other actions ; that is to say, this 
 is true in all cases where the action is prosecuted according to the 
 principles of the common law, or in accordance with the practice 
 in England until the adoption of the common law procedure act of 
 1852. The practice has been changed in many of the American 
 states, which will be considered in another place. "What is under- 
 stood by the modern action of ejectment, as contradistinguished 
 from other forms of action only, and the practice in such action 
 will be considered in this, and the five following chapters. 
 
 The modern action of ejectmelit, strictly speaking, so called, is 
 commenced by the delivery of the declaration against the casual 
 ejector to the tenant in possession ; and it has been held, that a 
 declaration in ejectment is so far considered a process of the court, 
 that the court will punish as a contempt, any improper conduct of 
 the tenant at the time it is delivered to him. {Rex v. Smith, 
 Strange's E. 567.) The action is commenced by the service of a 
 declaration, because the plaintiff and defendant are only fictitious 
 persons, and therefore the suing out of a writ would be a useless 
 form. The declaration is the only means by which the party in 
 possession is informed of the claim set up by the lessor, and 
 
380 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 required to appear and defend his title. {Bex v. Smith, Strange's 
 E. 567.)* 
 
 The several requisites of the declaration will first be considered, 
 as those naturally come first in order. The rules which relate to 
 jpersonal actions only, do not extend to the action of ejectment, 
 which is regarded in England as a mixed action, and therefore it 
 is held that the old forms of entitling and commencing the declara- 
 tion should be observed. {Doe v. Roe, 3 Moore & Scott's E. 370. 
 Doe V. Roe, 1 Adolph. & Ell. E. 11. Doe v. Eoe, 2 Dowl. P. 
 C. 690.) 
 
 The declaration should be regularly entitled of the term imme- 
 diately preceding the vacation in which it is delivered ; but if it 
 should be entitled of a wrong term, or a term not arrived, or not 
 of any term, it seems from the cases to be immaterial, provided 
 the notice to appear at the foot of the declaration was suflicient to 
 give the tenant due warning of the time of his appearance. {Doe 
 v.. Roe, 2 Dow. P. C. 186. Doe v. Ross, 3 ib. 5. Doe v. Rowe, 
 4 ib. 374. Doe v. Roe, 6 ib. 380. Doe v. Roe, Ib. 508. Doe v. 
 Roe, 6 ib. 184. Doe v. Roe, 9 ib. 347. Doe v. Roe, 6 Man. & 
 Gr. E. Yo4.) The same doctrine has been held in this country_ 
 In the state of New York, where the practice in ejectment was 
 similar to that lately prevailing in England, the supreme court 
 held, that the title to a declaration in ejectment is mere form, and 
 good, though of a term after its service ; and that the declaration 
 would be good, even without any title at all. {Jaekson v. Stiles, 6 
 Cow. E. 597.) And the same rule has been recognized in the 
 state of 'New Jersej\ ( Vide Den v. SnowMll, 1 Green's E. 23. 
 Den V. McShane, Ib. 35.) 
 
 In England declarations have been upheld entitled Michael- 
 mas term, " 54 George III," instead of " 55 George III" {Good- 
 title v. Roe, 2 Chitty's E. 172); Trinity term, "56 George 
 III," instead of " 55 George III" {Doe v. Graves, 2 Chitty's E. 
 132) ; Michaelmas term, " 8 William lY," instead of " 1 William 
 lY," Trinity term, " 6 William lY," instead of " 5 William lY " 
 
 *The fictions of what is called in the books the modern action of ejectment are 
 no longer retained in practice in England, or in most of the United States. But, 
 inasmuch as the old common law practice in the action is still in vogue in portions 
 of the United States, and as many of the principles governing such practice are 
 everywhere recognized in actions to recover real property, these chapters in 
 respect to the modern action of ejectment, so called, cannot well be omitted. 
 
THE DECLARATION IN EJECTMENT. 381 
 
 {Ooodtitle V. Eoe, 2 Chitty's E. 172); "Hilary," instead of 
 " Michaelmas " term (Anonymous, 2 Chitty's E. 172); and "Mi- 
 chaelmas," instead of " Easter " term (Anonymous, 2 Chitty's E. 
 173), the notices to appear being correct, and the declarations being 
 delivered at the proper time. So also "In the common pleas, June 
 12, 1834" {Doe v. Roe, 1 Bing. K C. 253) ; and when the declara- 
 tion was delivered before the first day of " Hilary " term, and the 
 notice at its foot was dated " January 1, 1818," and was to appear 
 jvithin the first four days of the next term, it was held sufficiently 
 certain, although not entitled at all. (Goodtitle v. Badtitle, H. T. 
 1818, C. B. M. S.) These are the cases referred to by Mr. Adams 
 on the subject of entitling the declaration, and sufliciently illustrate 
 the views of the court in respect to it. 
 
 On the contrary it seems that a declaration entitled Trinity 
 term, " 4:th Victoria," instead of " 3d Victoria," has been held 
 insnfiicient, although it was sworn that the service was efi'ected on 
 the 29th (Jay of October, with notice to appear in the next 
 Michaelmas term. {Doe v. Roe, 9 Dowl. P. C. 43. Doe v. Roe, 
 1 Wol. P. C. 58. Doe v. Roe, 2 Dowl. N. S. 392.) So, also, a 
 declaration entitled " C "William IV," instead of " 7 "William IV," 
 has been held insufficient; and so, also, a declaration entitled 
 " Michaelmas term, 1840," with a notice to appear in " next Mich- 
 aelmas term," and which declaration was served before the com- 
 mencement of the term, on which occasion the tenant said he 
 knew no step could be taken until March, was held insufficient. 
 {Doe V. Roe, 5 Dowl. P. C. 273. Doe v. Roe, 9 ib. 67.) 
 
 If the declaration be irregularly entitled, and the notice to 
 appear does not demonstrate the time for appearance with suffi- 
 cient certainty, as where the declaration was entitled of a term 
 not arrived, and there was no date to the notice, it seems, upon 
 principle, that such declaration ought not to be supported; but 
 Mr. Adams says it has been ruled both ways, and cites authorities 
 to show it. {Doe v. Roe, 7 Dowl. P. C. 579. Doe v. Roe, 9 ib. 131. 
 Anonymous, 2 Chitty's E. 172. Doe v. Roe, 8 Scott's E. 385.) 
 
 It has also been held in England, as well as in this country, 
 that the omission of the name of the court on entitling the declara- 
 tion, is immaterial, if the notice at the foot gives the required in- 
 formation. {Doe V. Roe, 8 Dowl. P. C. 612.) It is also held to be 
 immaterial whether the declaration be filled in with the name of 
 the casual ejector or the tenant in possession, except that in the 
 
382 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 latter case the court will not give a rule absolute for judgment in 
 the first instance. (JDoe v. Roe, 9 Dowl. K. 363.) 
 
 With the exception of cases in which the ejectment was founded 
 upon the provisions of the statute 1 William lY, chapter 70, section 
 36, where the declaration was required to be specially entitled of 
 the day next after the day of the demise, whether the same should 
 be in term or vacation, the declaration might be entitled of a term 
 anterior to such demise ; that is to say, inasmuch as the demise was 
 tlie title upon which the plaintiff was supposed to enter, and the 
 ouster the supposed wrong for which the action was brought, the 
 declaration might be entitled antecedently to the cause of action. 
 This anomaly, says Mr. Adams, springs out of the fictitious nature 
 of the proceedings, and the control which the courts exercise over 
 them. If the tenant appear, according to the requisition of the 
 notice, and apply to be admitted a defendant instead of the casual 
 ejector, he will be compelled by the consent rule to accept a 
 declaration entitled of a subsequent term ; and if he leave the 
 suit undefended, judgment will, as of course, be taken against the 
 casual ejector. {Turnstall v. Brend, 2 Yent. K. 17Y.) 
 
 III. Tlie venue in the modern action of ejectment is local, and must 
 be laid in the county in which the lands in dispute are situated ; and if 
 it appears on the trial that the lands are situated in a different county 
 from that stated in the declaration, the plaintiff will be nonsuited. 
 But if the venue stated in the body of the declaration be correct, 
 a mistake in the venue, in the margin, seems to be unimportant. 
 (Anonymous, 6 Modern K. 222. Mortyn v. Fabrigas, Cowp. E. 
 161, 176. Doe v. Roe, 3 Dowl. P. G. E. 323.) In some states, 
 although the action of ejectment is local, the venue may be 
 changed from the county where the land lies, to another county, 
 on motion to the court, and oh proper cause shown. This is 
 certainly the practice in New Jersey. {Meldoon v. Jarvis, Cox's 
 K. 203.) 
 
 lY. In respect to the demises, there is no limit to the number 
 which may be inserted in the declaration in ejectment, but it is not 
 the claimant, but the nominal plaintiff who is the plaintiff upon 
 the record ; and, therefore, although the lessors may have separate 
 interests, they cannot be separately heard at the trial. {Doe v. 
 Bromley, 6 Dowling & Ryland's E. 292.) 
 
 The demise declared upon must be consistent with the title of 
 the lessor ; that is to say, such a demise must be supposed to be 
 
TBE DECLARATION IN EJECTMENT. 383 
 
 made, or would, if actually made, have transferred the right of 
 possession to the lessee, though the demise is a fiction, the plaint- 
 iff must count on one, which, if real, would support his action ; 
 the fiction must be such as might by possibility have been true. 
 The lessor is supposed to have been capable of making a demise 
 not only at the time when the demise is alleged to have been made, 
 but when the suit was commenced. {Doe v. Marsten, 3 Wend. E. 
 149. Lessee of Sinney v. The Ghesajpeake and Ohio Canal Go. 
 8 Peters' E. 214. Goxe v. Joiner, 3 Bibb's E. 297. Wood v. Grunly, 
 3 Harr. & Johns. E. 13. Den v. McShane, 1 Green's E. 35.) 
 
 In the case in Wendell, above cited, the court held that a demise 
 in a declaration of ejectment laid from a man who was dead at the 
 commencement of the suit, may be objected to at the trial, and is 
 cause of nonsuit (and vide Elliott v. Bohannon, 5 B. Mon. E. 121) ; 
 and in the case in Peters, the declaration in ejectment was dated on 
 the 22d day of May, 1831, and the plaintiff counted on a demise 
 made by A. B. on the 1st day of January, 1828, but his title, as 
 shown by the evidence, commenced on the ITth of May, 1828, 
 which, it will be observed, was subsequent to the demise on which 
 the plaintiff counted, and the court held that the case could not be 
 sustained. 
 
 In the case cited from Bibb, the facts were similar to those in 
 Peters, and the court held that in ejectment, if the demise is laid 
 in the declaration before the title of the lessor accrues, the plaint- 
 iff cannot maintain his action ; and in the case in Harris and John- 
 son, the demise in the declaration in ejectment was stated to be on 
 the 1st of January, 1801, and the conveyance offered in evidence, 
 under which the plaintiff claimed, was dated on the 23d of Febru- 
 ary, 1802, and the court held that the plaintiff could not recover. 
 But it has been held in Yirginia, that in ejectment, after issue 
 his been joined, it cannot be objected that the demise was laid 
 before the title of the lessor of the plaintiff accrued. ( Whittington 
 V. Christian, 2 Eandolph's E. 353.) 
 
 This, however, is the effect of the statute of jeofails in force in 
 that state. The courts having held expressly that if in ejectment 
 the demise and ouster be laid precedent to the plaintiff's title, it 
 will be cured by that act. {Dmol v. Bihh, 3 Gall's E. 362.) 
 
 Where a demise in ejectment was likely to expire before the 
 next term, the court allowed the same to be enlarged. {Young v. 
 Erwin, 1 Haywood's E. 323.) But a motion to enlarge the term of 
 
384: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the demise, in an ejectment whereon judgment had been recovered 
 in the general court of Maryland in 1790, was refused. {Fraiser 
 V. Hall,, 5 Harr. & Johns. R. 437.) This case, however, does not 
 necessarily conflict with the authority of the North Carolina conrt, 
 reported in Haywood. But the English courts have in some 
 instances expressly refused the enlargement of the demise declared 
 on. {Bradney v. Hasselden, 1 Barn. & Ores. B. 121. Same Case, 
 8 Eng. 0. L. E. 52.) 
 
 Though the declaration in law relates to the first day in the 
 term, because the term is in law considered as one day, yet the 
 plaintiff may declare on a lease made sometime after the first day 
 of tlie term, and shall recover ; but it must, however, appear to the 
 court that the declaration was filed after the day of the commence- 
 ment of the supposed lease, for otherwise the plaintiff complains 
 of an ejectment before he had title ; and if the time for filing a 
 bill was not examinable, the act of law which makes the relation 
 of bills to the first day of the term would be an act of injury to 
 the plaintiff, and delay his right ; for then a man ejected out of a 
 house, made in term-time, could not complain till term was over. 
 ( Vids Tunstall v. Brend, 2 Ventris' E. 173. 2 Bac. Abr. 173.) 
 
 The plaintiff in ejectment declared that whereas J. S. by inden- 
 ,ture the 9th day of June, did demise, etc., by virtue of which the 
 plaintiff entered and was possessed until the defendant the same 
 day ousted him ; it was moved in arrest of judgment, that it was 
 uncertain by the declaration when the term began, neither the day 
 of the date nor of the leasing and delivering being mentioned in 
 the declaration; yet judgment was given for the plaintiff, because 
 after a verdict it shall be intended not only to bear date, but also 
 to be sealed and delivered the day mentioned in the declaration, 
 which was the 9th day of June, for all deeds are presumed to be 
 delivered the day that thej' bear date, until the contrary appesW. 
 But where the limitation of the lessee is altogether uncertain, the 
 plaintiff cannot recover, because where the commencement of the 
 lease is uncertain, the lease is void in itself, and then the plaintiff 
 cannot have a title ; besides that, the court cannot possibly per- 
 ceive whether the ejectment was before or after the plaintiff's title 
 accrued, if such uncertain lease could give one. It is otherwise 
 where the limitation or commencement is impossible ; for in such 
 case the lease commences from the delivery, as if it had no date, 
 and then the court may judge whether the ejectment is said to be 
 
TSE DECLARATION IN EJECTMENT. 385 
 
 before or after the commencement. But tliere is this further reason 
 for the difference, for the impossible limitation is rejected, because 
 it could not be part of the agreement or contract ; but an uncertain 
 limitation is part of the contract, and vitiates the whole agreement, 
 because the court cannot j-ender it to a certainty. {Brady v. John- 
 son, Hetley's E. 63.) 
 
 It has been held that the same provision and exactinga is not 
 necessary in a declaration in^ ejectment as. in a praecipe. {Conner 
 V. West, 5 Burr. R. 2672.) lu ejectment, on the demise of an heir 
 by descent, the demise was laid on the day his ancestor died, and 
 the court held that it was well enough after verdict. {Roe v. 
 Eersey, 1 Wils. R. 274.) 
 
 A declaration in ejectment laid the demise on the 31st October, 
 without naming the year. The plaintiff at the trial proved a title 
 in himself on the 31st October, 1840. The court held that there 
 was no such variance between the proof and declaration as to em- 
 power the judge at nisi prius to order an amendment, and it was 
 declared that the defendant's proper course in such a case is to 
 apply to the court to compel the plaintiff to insert a proper date 
 to the demise laid iu the declaration. {Doe v. Heather, 8 Mees. & 
 "Wels. R. 158. Same Case, 5 Jurist, 755.) 
 
 But iu ejectment for a forfeiture, the demise was laid on the" 
 15th January; it appearing at the trial that the right of entry did 
 not accrue until that day, the judge ordered the declaration amended 
 by substituting the 16tli ; and the court held that the amendment 
 was warranted. {Doe v. Leach, 3 Scott's N. R. 509.) So, alsb, 
 where the declaration omitted the year of the demise, at the trial, 
 the plaintiff having proved his title, the judge amended the record 
 accordingly; the court held that although this was not a variance 
 amendable within the statute, yet as the plaintiff had proved his 
 title, the omission Was no ground of nonsuit. {Doe v. Heather, supra!) 
 
 Where the lease was stated in a declaration of ejectment to have 
 been made on the 7th of July, 1825, to hold from "the 6th day of 
 July, then last past," it was construed to mean the 6th of July, 
 1825, and not the 6th of July, 1824, which was prior to the title 
 of the lessor; the court holding that where the words may be 
 rendered either way, that construction shall be adopted which 
 will be under the fictitious demise useful to the action, rather 
 than that which would destroy it. {Den v. Vanness, 5 Halstead's 
 R. 102.) 
 
 49 
 
386 LAW OF EJECTMENT AND ADVERSE ENJOTilENT. 
 
 In a case in ejectment in Indiana, the demise was alleged in the 
 declaration to have been made on the 1st of October, 1819, and the 
 ouster to have taken place afterward, to wit, on the 2d of April in 
 the said year ; the court held that the declaration was good, and 
 that the scilicet, being contrary to the word " afterward " and the 
 precedent matter, was repugnant and void. {Armstrong v. JacJc- 
 son, 1 Blackford's E. 210.) 
 
 Though by the modern practice the plaintiff is not bound to 
 prove the lease mentioned in the declaration, for that is confessed 
 by the rule, and by that means the mischief of any variance be- 
 tween the lease declared on, and the lease produced and proved on 
 the trial is avoided, which was a danger the plaintiff was exposed 
 to, and often miscarried by the old method of proceeding ; yet, in 
 the modern practice, the plaintiff must take care to declare in such 
 a lease as suits with his lessee's title ; and, therefore, if there be 
 several lessors, and a joint demise by them all be alleged in the 
 declaration, such a title must be shown in them as would entitle 
 each of them to demise the whole ; because if any of the lessors 
 have not a legal interest in the whole premises, he cannot in law 
 be said to demise them. (2 Bac. Abr. 171.) 
 
 As an example of this rule, where the plaintiff declared on a 
 lease made by A. and B., and it appeared on the trial that A. was 
 tenant for life, remainder to B. in fee ; this on a special verdict 
 was assigned against the plaintiff, because it could not be the lease 
 both of A. and B. to pass the land in praesenti to the plaintiff, for 
 during the life of A. it could not be his lease only, because he was 
 the tenant in possession, and B.'s joining- in the lease amounted 
 only to a confirmation, but could pass no interest daring the life 
 of A., and, therefore, the allegation of the plaintiff, that A. and B. 
 demised, was not proved. {King v. Bery, Popham's H. 37. Tre- 
 ports Case, 6 Coke's R. 75, 5. 2 Bac. Abr. 171.) And it has been 
 held in the state of Kentucky, that where the declaration counts 
 on a joint demise of nine, and it appears in proof on the trial \ha,i 
 seven only of the lessors have title, the plaintiff cannot recover. 
 {Skyle V. King, 2 A. K. Marshall's E. 385 ; and vide Taylor v. 
 WJiiting's Heirs, 4 Monroe's E. 365.) But M'here the declaration 
 in ejectment states that the lessors jointly and severally demised, 
 the Kentucky courts hold that the declaration is supported by 
 proving a tenancy in common. {Courtney v. Shropshire, 3 Lit- 
 tell's E. 265.) 
 
THE DECLARATION' IN EJECTMENT. 387 
 
 It is error for a person owning the exclusive title to lands to 
 unite with himself in a joint demise in ejectment, persons having 
 no title. {Adams v. Turner, 7 Hammond's E. part 2d, 136.) 
 
 If the plaintiff declares on a lease made by A. and B., and on 
 the trial it appears that they are tenants in common, the plaintiff 
 cannot recover. But if A. and B. had been joint-tenants or co- 
 parceners, a joint lease to the plaintiff from them would have been 
 good, and he might have declared quod demiseruntj and the reason 
 of the difference is that tenants in common are of several titles, 
 and, therefore, the freehold is several, while joint-tenants are seised 
 per my et per tout— "in part and entirely"*- — and they demise by 
 one and the same title, and, therefore, each may be said to demise 
 the whole. Coparceners stand on the same foundation and reason, 
 because both coming in as one heir, the possession must be joint as 
 that of joint-tenants. In a word, joint-tenants, or coparceners, have 
 a sufficient interest in the lands held in joint-tenancy, or copar- 
 ceny, to entitle them to make a joint demise of the whole premises, 
 while tenants in common have not. {Moore v. Fursden, 1 Shower's 
 E; 343. Millener v. Robinson,, Moore's R. 682. Boner v. Juner, 
 Ld. Eaymond's E. 726. Mantle v. Wellington, Cro. Jac. 166. 
 Morris v. Barry, 1 Wils. E. 1. Heatherley v. Weston, 2 ib. 232. 
 Doe V. Errington, 1 Adolph. & Ell. E. 750. Doe v. Ditt, 11 ib. 
 842.) This seems to be the rule in England, as established by 
 many cases, and as stated by Mr. Adams substantially; but it has 
 been doubted whether the doctrine will hold. To avoid any diffi- 
 culty, therefore, in these cases, the safer way is for the plaintiff to 
 count in his declaration of several demises of each, and then add a 
 count for the whole on the demise of both or all the parties enti- 
 tled. There is certainly nothing impracticable, in fact, nor absurd 
 in lasv, in joint and several demises of the same land, and, there- 
 fore, the declaration may properly aver a joint and several demise 
 by the lessors. The doctrine has sometimes been recognized in 
 the United States, and sometimes not. But more generally, where 
 the old fictions and forms prevail, the common law doctrine of the 
 text is fully carried out. The matter, however, is frequently regu- 
 lated by statute, and this will be considered when the policy of the 
 several states is examined.' 
 
 It seems not to be compulsory upon joint-tenants, or parceners, 
 in England, to allege in their declaration a joint-demise ; for if a 
 joint-tenant, or parcener, bring an ejectment without joining his 
 
388 LAW OF EJECTMENT AND ADVESSE ENJOYMENT. 
 
 companion in the demise, it is considered as a surrender of the 
 tenancy, and he will be alFowed to recover his separate moiety of 
 the land ; and if all the joint-tenants, or parceners, join in the 
 action, but declare upon separate demises by each, it is held that 
 they may recover the whole premises; because, by the several 
 demises, the plaintiff has the entire interest in the whole subject 
 matter, although the joint-tenancy is severed by the separate let- 
 ting. (Doe V. lieardon, 6 East's R. 173. Boe v. Lonsdale, 12 ib. 
 39. J)o6 V. Head, Ib. 57. Boe v. Fenn, 3 Campb. E. 190.) But 
 where two or more tenants in common are lessors of the plaintiff, 
 a separate demise niUst be laid by eacli ; or they must join in a 
 lease to a third person, and state the demise to the plaintiff to have 
 been made by their lessee. The first is said to be the more usual 
 mode of proceeding, and the declaration need not state the several 
 demises to be of the several shares belonging to tlie sevei-al tenants 
 respectively ; but each demise may be alleged generally to be of 
 the whole premises demanded ; for, under a demise of the whole, 
 an undivided portion may be reserved. {Doe v. Wippel, i Esp. R. 
 330.) The rule in this respect is not uniform in the American 
 states. In some of the states a declaration in ejectment, by ten- 
 ants in common quod demiserunt is bad, and in others it is allowed, 
 as will be observed when the policy of the several states is con- 
 sidered. 
 
 The demise must be laid in the name of the party in whom the 
 legal title is vested, and when any doubts exist upon the point, it 
 is usual to declare upon several distinct demises by the several 
 persons concerned in interest ; and the claimants will not then be 
 coniined at the trial to one particular demise, but will be allowed 
 to resort to any included in the declaration, under which they may 
 be able to prove title to the premises. Difficulties of this nature 
 frequently occur when trustees are lessees of the plaintiff; and it 
 has been well suggested that it is always advisable in such cases 
 to lay separate demises by the trustees, and cestui que trust, unless 
 the effect of the statute of uses upon the trust is clear and indis- 
 putable. But it seems, in strictness, application should be first 
 made to such trustees for permission to make use of their names ; 
 and where demises are inserted in the names of any parties 
 without their authority, the court, on motion, will order such 
 demises struck out of the declaration, unless the justice of the 
 case requires their insertion, and a sufficient indemnity is given ; 
 
THE DECLARATION IN EJECTMENT. 389 
 
 and the court will also interfere to set aside proceedings after 
 verdict given under similar circumstances, if tlie application be 
 bona fide, and the affidavit on which it is grounded distinctly 
 and unequivocally show the want of such authority. {Doe v. Eoe, 
 2 Chitty's E. 171. Doe v. Fellis, lb. 170.) But where a bank- 
 rupt laid a demise by his assigns without their permission (they 
 having given up to him the property in the premises), and obtained 
 judgment and execution therefor, the court refused to set aside the 
 proceedings at the instance of the defendant in ejectment, notwith- 
 standing an affidavit from one of the assignees that he knew nothing 
 ^f the premises in question ; considering the application a mere 
 contrivance for defeating the action. {Doe v. Figgins, 3 Taunt. 
 E. 440.) 
 
 By the practice, as recognized in the United States, separate 
 demises from several lessors may be laid in the declaration in 
 ejectment, and the plaintiff, at the trial, may give in evidence the 
 separate titles of the several lessors to separate parts of the premi- 
 ses in question, and recover accordingl}'. {Jackson v. Sidney, 12 
 Johns. E. 185. Magruder v. Peter, 4 Gill & Johns. E. 323.) 
 In the case in Johnson, which arose under the old practice in 
 !N"ew York, the court said : " The declaration contains separate 
 demises from each lessor, and upon the trial it was offered on 
 the part of the plaintiff to show separate title in each lessor 
 to a distinct part of the premises in question ; and this was 
 objected to and overruled by the judge, and the plaintiff com- 
 pelled to elect and proceed upon one count only. Had the lessees 
 been tenants in common of the premises, there could be no doubt 
 but that they could have had a right to recover the whole, if they 
 could have shown a title to the same. And there can be no good 
 reason against their showing a separate title in each distinct part. 
 It cannot subject the defendant to any inconvenience, or operate 
 as a surprise upon him ; and the costs to which he may be made 
 liable, on a recovery against him, will be much less than if four 
 separate actions were brought. It is a cause, therefore, that ought 
 to be encouraged, as it prevents a multiplicity of suits." 
 
 In the state of Kentucky it seems that in an action of ejectment 
 several demises were made by the lessors of the plaintiff, and it 
 did not appear whether they were joint tenants, or tenants in 
 common ; after verdict, without exception to the evidence, it was 
 held that it was too late to question the propriety of laying several 
 
390 LAW OF EJECTME1\'T AND ADVERSE ENJOYMENT. 
 
 demises in the declaration. The court did not. therefore, decide 
 whether such a practice was proper or not. {Kouns v. LawaLl, 2 
 Bibb's E. 236.) 
 
 But the practice is well settled, except where changed by statute, 
 that several demises may be inserted in the same declaration ; and 
 it is held that they may be joint or several, or both, according to 
 the manner in which the party expects to prove on the trial. 
 {Smith v. Bewey, 15 "Wend. E. 601.) 
 
 In setting out the demise in the declaration, care is necessary 
 that the same be properly and truly stated, in order that embar- 
 rassment be saved on the trial. For example, it has been held 
 that if one or more tenants, in common were stated in one count 
 to \\2iwe jointly demised to the nominal plaintiff, instead of insert- 
 ing separate demises, the action would fail. {Doe v. Errington, 
 3 Neville & Manning's E. 46.) On the other hand, unnecessary 
 counts should not be inserted in the declaration, because, if the 
 plaintiff should fail to establish all on the trial, under the old 
 practice, he would have to pay costs. (1 Chitty's Pleadings, 221.) 
 
 But wliere several demises are set out in the declaration, and 
 proof is given in respect of all of them at the trial, if evidence be 
 tendered by the defendant, which affects some of them only, it has 
 been held that the claimant may abandon such demises, and rest 
 his case upon the demises which such evidence does not affect. 
 {Doe V. Wainwright, 2 Adolph. & Ell. E. 520. Doe v. Tindal, 
 1 Mood. & Malk. E. 314.) 
 
 If a corporation be aggregate of many, the declaration may set 
 forth the demise without mentioning the christian names of the 
 corporators ; but if the corporation be sole, or if the demise be by 
 a bishop, the name of baptism must be inserted. The reason of 
 this seems to be, that in the first case the name solely consists of 
 its character, but in the last in its person ; therefore, there cannot 
 be a sufficient specification of. that person without mentioning his 
 name. {Carter v. Cromwell, Saville's E. 128. And vide Doe v. 
 Miller, 1 Barn. & Aid. E. 699.) 
 
 The statute 59 George III, chapter 12, section 17, which vests 
 all lands, etc., belonging to the parish, in the churchwardens and 
 overseers for the time being in the nature of a Ijody corporate, 
 requires that the parties shall in all actions be named and described 
 as overseers; but where, in an action of ejectment brought under 
 that statute, the declaration contained two counts, one describing 
 
THE DECLARATION IN EJECTMENT. 391 
 
 the lessors by their office without their names, and the others hy 
 their names M'ithout their office, tlie court held that it was suffi- 
 cient after verdict. {Doe v. Harper, 2 Cowling & Eyland's E. 708.) 
 And in another case, where one set of counts specified the names 
 of the individuals, and the other set omitted them, the court, on 
 motion, directed the last set to be struck out. (Doe v. Hoe, i Dowl. 
 P. C. 222.) 
 
 A man may declare in ejectment on a joint demise from husband 
 and wife, of the lands of the wife, so the lease be made by herself 
 in person, whether it be by parol or indenture ; for the contracts 
 of the wife relating to lier own estate are but voidable during the 
 coverture, that she may have the benefit of them after the death 
 of her husband, if they shall be for her interest to confirm them ; 
 and the husband ought to join in the lease, because they are con- 
 sidered in the law but as one person, and he having, during the 
 coverture, an interest in the property of his wife, both must join, 
 and on such joint lease each may be said to demise the whole, and 
 the lessee may maintain his ejectment on such demise, because dur- 
 ing the coverture he has the power of her propertj', and, therefore, 
 all his contracts relating to it arc good during his life, because his 
 pleasure must determine her who has resigned her will to him, but 
 after his death she may avoid the lease. (2 Bac. Abr. 176.) But 
 if the plaintiff declares on a joint lease by baron and feme, and 
 the lease appears from the evidence to have been executed by a 
 third person by virtue of a letter of attorney from the husband and 
 wife, such evidence will not maintain the declaration, because the 
 wife cannot delegate a power to a third person to act for her, who 
 has already devolved all power and authority on her husband ; and, 
 therefore, the letter of attorney being void as to the wife, it must 
 remain as to the husband only ; and hence it has been held, that 
 the lessee might in this case declare on that lease as the lease of 
 the husband only. (Runnington on Ejectment, 102. Gardiner 
 v. Norman, Cro. Jac. 617.) In such cases as these, the present 
 practice would seem to be not to make any actual lease, but to 
 declare that the husband and wife demised, and, perhaps, to add 
 another count, on the demise of the husband alone. If the tenant 
 appear, he enters into the common rule to confess lease, entry and 
 ouster. On the trial, therefore, if he confesses, nothing comes in 
 question but the title. If he does not confess, the plaintiff is non- 
 suited, for the not confessing by the tenant, which is marked on 
 
392 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the postea, and the plaintiff signs judgment against each casnal 
 ejector, sues out execution, and turns the tenant out of possession, 
 so that lease or no lease cannot come in question. (2 Bac. Abr. 176.) 
 The day of the demise must be subsequent to the time when the 
 claimant's right of entry accrues. This is the imperative rule both 
 in England and in this country. {Goodtitle v. Herbert, 4 Terra 
 E. 680. Doe v. Shawcross, 3 Barn. & Ores. K. 752. Dickenson, v. 
 Jackson, 6 Cow. E. 147. Van Allen v. Eogers, 1 Johns. Cases, 281. 
 Sighee v. Vam Riper, 10 "Wend. E. 414. Coxe r. Joiner, 3 Bibb's 
 E. 297. Olent v. Bowdine, 1 Spencer's E. 394. Wood v. Grimdy, 
 3 Harr. & Johns. E. 13. Den v. McSJiane, 1 Green's E. 35.) It 
 is well to lay the demise as far back as the lessor's title will admit, 
 because the judgment in ejectment is conclusive evidence as to the 
 title of tlie lessor, for all tlie mesne profits accruing subsequently 
 to the day of the demise. For any other purpose than the action 
 or suggestion for mesne profits, it is suflicient to charge the day 
 of the demise subsequent to the time the claimant's right of entry 
 accrued, and before the declaration is served. But it would seem 
 that the time of the occupation of the premises by the tenant, with 
 a view to the recovery for mesne profits, must be proved to be 
 within the time laid in the demise, and that the plaintiff cannot 
 recover for the occupation of the premises further back than the 
 date of the demise laid in the declaration. {Aslin v. Parkin, 
 2 Burr. E. 665.) If there is any doubts as to the period when the 
 lessor's title accrued, it seems to be customary to state different 
 demises by him on different days, although in some cases, when 
 necessary, an amendment of the day of demise will be allowed on 
 the trial. {Doe v. Leach, 3 Manning & Gr. E. 229. Doe v. Hall, 
 6 ib. 795.) 
 
 In an ejectment on the demise of an heir by descent, the demise 
 may be laid on the day the ancestor died, for the ancestor might 
 die at a certain hour in the day, the heir enter at an hour later, 
 and make a lease still later on the same day, which would be good. 
 {Roe V. Hussey, 3'Wils. E. 274.) 
 
 It has before been stated that if the date of the year of the 
 demise be omitted in the declaration, the defendant cannot take 
 advantage of the omission at nisi prius ; the only proper course 
 to be taken in such case is to apply to the court to compel the 
 lessor to insert the correct date in his declaration. {Doe v. 
 Heather, 8 Mees. & Wels. E. 158.) "When the ejectment is 
 
TEE DECLARATIOir IN EJECTMENT. 393 
 
 brought to recover the premises by reason of the forfeiture of the 
 tenancy for non-payment of rent, the day of the demise must be 
 subsequent to the last day on which the rent is payable, to s&ve 
 the forfeiture, and when an ejectment is brought against a tenant 
 at will, the demise must be laid subsequently to the time when 
 possession is demanded, or the tenancy terminated. {Doe v. 
 Shawoross, 3 Barn. & Ores. E. 752.) 
 
 The length of the demise has no reference to the nature of the 
 title of the claimant, and may be of longer duration than his 
 inteirest in the land, because if the lessee have the right of posses- 
 sion but for a month, and inake a lease for seven years, it will 
 inure to his lessor for the month, and during that time he will be 
 entitled to the possession ; and as the judgment in ejectment 
 could not be used by the lessor as evidence of his title, lie could 
 not, by reason of it, keep possession after the month had expired. 
 {Doe V. Forter, 3 Term E. 13. Clarke v. Power, 1 Mod. E. 10. 
 Doe V. Seaton, 2 Cr. Mees. & Eos. E. 728.) 
 
 V. Formerly it was necessary to describe the premises for which 
 an action of ejectment was brought, with just accuracy ; but far 
 less accuracy is requisite in modern practice. All the authorities 
 say that a general description is good, unless the statutes of the 
 state require the description to be more specific. Those cases will 
 be. noted when the statutory policy of the states upon the sub- 
 ject is considered. Wliere the declaration described the property 
 for which the suit was instituted as " lying between Water street 
 and the river Monongahela, with the appurtenances, situate and 
 being in the city of Pittsburgh," the supreme court of the United 
 States held the description to be sufficient. (Barclay v. Howell's 
 Lessee, 6 Peter's E. 498.) 
 
 So where the declaration described the lands as " a certain 
 piece or parcel of land, situate below and adjoining A township, 
 B county, containing forty acres, be the same more or less, being 
 part of a tract of land conveyed in the name of C. D., and bound 
 by land surveyed in the name of E. F., " the courts of Pennsyl- 
 vania held the description sufficiently specific. {Thomas v. Gulp, 
 4 Serg. & Eawle's E. 271.) 
 
 It is held in the English practice not to be necessary to give any 
 
 local description of the premises in the declaration, beyond a 
 
 statement of the county in which they lay. • Thus, a demise of 
 
 "the premises " situate in the county aforesaid," without any local 
 
 50 
 
394 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 description, was held suiEcient on a motion in arrest of judgment. 
 {Doe V. Gunning, 7 Adolph. & Ell. E. 240.) But it seems that 
 tlifi omission of all local description of the tenement demised is 
 error, although the county and vill in which the demise was made 
 are stated in the declaration, and the county is stated in the 
 margin. (Doe v. Bath, 2 Nev. & M. E. 440.) 
 
 In a ease upon writ of error brought upon a judgment of the 
 court of king's bench in Ireland, which had affirmed a judgment 
 in ejectment given for the plaintiff by the court of common pleas 
 tliere, after a general verdict for the jilaintiff, the parcels were 
 described in the declaration to be 5,000 messuages, 5,000 cot- 
 tages, 10,000 acres of land, etc. ; in all those the lordships, manors, 
 and late dissolved abbey or monastery of Boyle and Insemacranaw, 
 in the county of Koscommon. The objection taken was the un- 
 certainty of the description of the premises in the declaration. 
 Lord Mansfield, Ch. J. said, after verdict he would not say that 
 the description was " not to be understood." Mr. Justice Denison 
 was of the same opinion, " that the judgment ought to be affirmed ;" 
 and he held that tlie description was sufficient. Mr. Justice 
 Foote coucurred, and Mr. Justice "Wilmot also concurred, and 
 added that he never could understand that manner of reasoning 
 so often urged upon arguments of this sort, viz. : " that the descrip- 
 tion must necessarily be so certain that the sheriff may be able 
 exactly to know, without any information from the plaintiff of 
 what to give possession ; which is not true ; for such precision is 
 not necessary in an ejectment." {Cottingham v. King, 1 Burr. E. 
 623, 630.) So where the premises were described in the declara- 
 tion as two houses, one barn, eighty acres of arable land, twenty 
 of woodland, with the appurtenances, in Penn township, Northum- 
 berland county, being in part of a tract of land reconveyed in 
 pursuance of a warrant granted to W. Gr., the same was held, in 
 Pennsylvania, to be sufficient after verdict. {Fisher v. Larick, 7 
 Serg. & Eawle's E. 99. And vide Jjyons v. Miller, 4 ib. 279. 
 Hason v. Norris, 4 Binney's E. 77.) But contrary to the intima- 
 tion of Mr. Justice Wilmot, in Burrows, it has been held in this 
 country that the description of the land in the declaration must be 
 such as to enable the sheriff to deliver possession of the premises 
 after judgment. {Fenwioh v. Floyd, 1 Harr. & Gill's E. 172.) 
 
 Where the premises are described as lying in a parish or ham- 
 let, the description must be a correct one ; and an uncertain or 
 
THE DEOLABATION IN EJECTMENT. 395 
 
 improper description would be fatal on the trial. "Wliere the eject- 
 ment was " for a tenth part of a messuage in D. and F.,"and it 
 appeared in evidence that the whole messuage lay in D., and no 
 part in F., the court held the description to be ill, because it was 
 " precisely of the tenth part of the entire thing ; " though it w&s 
 said by the court that if the ejectmeint had been of an acre of land 
 in D. and F., and it appeared that the whole acre was in D., 
 it would be well enough. The reason of this diversity seems to 
 be that the acre being the whole thing demanded, the description 
 is sufficiently certain, -althongh it all be in one parish; whereas 
 when only a tenth part is demanded, it is uncertain which tenth 
 part is meant, and, therefore, as no tenth part answers the descrip- 
 tion, the sheriff could not give execution. {Goodwin v. Blackman, 
 3 Lev. E. 354. Vide Goodright v. Faroson, T Mod. E. 457.) But 
 this distinction made in the case in Levinz, will hardly be recog- 
 nized as very substantial, and tiie final disposition of the case was 
 difierent from what would be expected under the later practice. 
 Indeed the authority was questioned in Lord Mansfield's time, and 
 pronounced contrary to all experience. {Dunn v. Purvis, 1 Burr. 
 E. 32(1, 330.) 
 
 In the state of Connecticut the superior court of errors held, 
 that, where the declaration in ejectment described the demanded 
 premises as being bounded south on a turnpike road, and it 
 appeared that they were bounded by the traveled part of the 
 road, the description in the declaration was sufficiently certain 
 to enable the plaintifi^, after establishing his title, to recover the 
 land embraced in the highway. {Wooster v. Butler, 13 Conn. E. 
 309.) In an early case in the same state, where the declaration in 
 ejectment described the premises thus : " A certain tract of land 
 lying in Farmington, on the west side of the river, bounded north 
 on the plaintiff's own land, easterly on the Talcott mountain 
 turnpike road, south on the defendant's own land, and running 
 westerly about 200 rods, containing about three acres ; " the court 
 held the description sufficient. {Talbot v. Wheeler, 4 Day's E. 
 448.) And in a very late case in Connecticut, the supreme court 
 of errors decided that in ejectment it is enough if the demanded 
 premises are described in the declaration with such substantial 
 accuracy that they can be identified by the application of the 
 evidence to the description. The court declaring that the contest 
 
396 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is as to the title, and therefore a general description is sufficient. 
 {Munson v. Munson, 30 Conn. E. 425.) 
 
 Wliere the premises were described as situate " in the united 
 parishes of A. & B.," which parishes had been united together 
 by act of parliament, for the maintenance of their poor, but for 
 no other purpose, the court held the variance to be fatal, for the 
 reason that the parishes remained entirely distinct, except as to 
 the maintenance of the poor. (Goodtitle v. Lammiman, 2 Camp. 
 E. 274. Same Case, 6 Esp. R. 128.) But where the premises are 
 described as situate in tlie parish of A. & B., and it appeared that 
 A. & B. were separate parishes, the court of common pleas of 
 England rejected the word parish as surplusage, and considered 
 the demise as of the lands in A. & B. {Goodtitle v. Walter, 4 
 Taunt. R. 671.) But in another case tried before Baron Parke, 
 in which the description was similar, the demise was held fatal. 
 The learned baron said : " Had the allegation been that the houses 
 were in the 'parishes of A. & B., I should have thought the argu- 
 ment good in favor of the divisibility of such allegation, but here 
 the plaintiff has mentioned only one parish, and that by a name 
 which does not belong to any parish." {Doe v. Edwards, 1-Mood. 
 & Rob. R. 319.) 
 
 Where the premises were said to be in the parish of Farnham, 
 and were proved to be in the parish of Farnham Royal, the court 
 held the variance not to be fatal unless it was proved that there 
 were two Farnhams. {Doe v. Salter, 13 East's R. 9.) And where 
 the premises were described to be in the parish of "W., and on the 
 trial it was proved that there were two parishes of W., viz. , W. 
 on Trym, and "W. on Severn, the description was held to be suffi- 
 ciently certain, because " in common language the addition is not 
 used." {Doe v. Harris, 5 Maule & Sel. R. 326.) 
 
 Where the premises lie in different parishes, Mr. Adams says 
 that it has been usual to enumerate the whole as lying in one 
 parish, and to repeat the description of them as lying in the other 
 parish ; but it seems sufficient from Chitty's Precedents, to enu- 
 merate them once only, describing them as lying in the parishes 
 of A. & B., or in A. & B. respectively. Adams on Eject. 220. 
 2 Chitty's Free. 395.) But if the premises lie in two counties, 
 a recovery cannot be had for that portion of them which lies in 
 the county in which the venue is laid. {Sawder v. McMillan's 
 Heirs, 4 Dana's R. 458.) 
 
THE DECLARATION IN EJECTMENT. 397 
 
 The number of messuages, acrps, etc., mentioned in the demise, 
 need not correspond with the number to ■which the lessor claims 
 title. He may declare for an indefinite number of tracts of land, 
 and recover according to the quantity to which he proves title ; 
 although care should be taken in declaring that the number speci- 
 fied in the demise be larger than the number claimed. The rule 
 in this respect is alike both in England and the American states. 
 (Z>e«,v.P'M?"w, 1 Burr. R. 326;' G'uyv.Rand,CrQ.^\iz.lZ. Huffins 
 V. Ketcham,, 4 Dev. & Batt. R. 414. Lessor of Patton v. Cooper, 
 1 Cooke's E. 133. Wfdte v. St. Quirons, 1 Minor's R. 331.) Upon 
 the same principle, if the lessor of the plaintiff be entitled t.o a 
 moiety, or other part of an entire thing, as the half or third part 
 of a house, he may recover such moiety, or third part, on a demand 
 for the whole, although the reverse will not hold good. {Abbott v. 
 Skinner, 1 Slderfin's R. 229. Goodwin v. Blackman, 3 Lev. R. 
 334. But vide Winhwarth v. Mann, Yelv. R. 114.) Sometimes 
 in an action of ejectment, where several parcels of land are 
 claimed in the same declaration, and the defendant concedes the 
 plaintiffs right to recover as to some, and denies it as to others of 
 the parcels, the court, on motion, has, on, terms, struck from the 
 declaration the parcels,'the right of the plaintiff to which is con 
 ceded, and leave the parties to litigate only as to the others. 
 {Mower v. Mower, 20 Wend. E. 635.) And by the present prac- 
 tice in the state of New York, it would not be necessary for the 
 defendant to apply to the court in such a case. All he need do is 
 to serve upon the plaintiff an offer, in writing, to allow judgment 
 to be taken against him for the amount of the premises he is dis- 
 posed to concede to the plaintiff, specifying the same, with costs ; 
 and then if the plaintiff does not accept the offer within ten days, 
 the same is to be deemed withdrawn, and cannot be given in 
 evidence ; and if the plaintiff fail to obtain a more favorable judg- 
 ment, he cannot recover costs, but must pay the defendant's costs 
 from the time of the offer. (Code, §385. Keesey.Wyman,Sl-i.o-w. 
 Pr. R. 88.) And the same practice has been adopted in several 
 others of the American states. 
 
 TI. The entry of the plaintiff on the land claimed need not be 
 alleged in the declaration to be made on any particular day, although 
 the time of entry in practice is usually alleged. (2 Chitty's Plead- 
 ings, 881, and note o.) It is sufficient if it be declared generally 
 that the plaintiff entered by virtue of the demise ; and Mr. Adams 
 
398 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 says it was not required by the ancient practice that the time of 
 the entry be alleged in the declaration, because, as the plaintiff 
 entered by virtue of the lease, he must necessarily have entered 
 after his title accrued ; though it was then said that it might have 
 been otherwise, if the declaration had been praetextu cujus he 
 entered, for the plaintiff might enter unlawfully, or before his time, 
 under pretense of the lease. (Adams on Ejectment, 221, 222. 
 WaMy V. Warren, 2 Eoll. R. 466. Sed vide Douglass v. Shank, 
 Cro. Eliz. 766.) 
 
 YII. It is not necessary that the particular day upon which the 
 ouster of the plaintiff by the casual ejector took place, be alleged 
 in the declaration, although the date of such ouster should regularly 
 be averred as having occurred after the commencement of the sup- 
 posed lease and entry. {Miller v. Shackhford, 4 Dane's -R. 264. 
 Lymi's Lessee v. Dowries, 1 Yeates' II. 518.) But it is requisite 
 that the date of the ouster be charged in the declaration as being 
 after the lease and entry supposed, in order to support the con- 
 sistency of the iiotion ; because, as the title of the plaintiff is sup- 
 posed to arise from the lease mentioned in the declaration, it would 
 be absurd for him to complain of an injury to his possession before 
 he had, by his own showing, any claim to be possessed. It seems, 
 however, not to be absolutely necessary that this consistency should 
 be preserved ; for as the words " afterward, to wit," are always 
 used immediately before mentioning the day of the ouster, it is 
 probable, upon the principles by which ejectments are at present 
 regulated, that the courts would in all cases consider an ouster 
 laid previously to the day of the entry, " as impossible and repug- 
 nant," and as such reject it. {Adams v. Goose, Cro. Jfic. 96. Davis 
 V. Purdy, Yelverton's E. 182.) 
 
 It appears from the books, that in some old ejectment cases the 
 ousters were laid on the same days as the demises, and they were 
 decided to be improper, upon the distinctions formerly taken, as 
 to the time of the commencement of a demise, where stated in the 
 lease to be " from the date," and where from " the day of the date," 
 of the lease; but at a later day it was determined that these 
 expressions shall be construed indifferently, either inclusively or 
 exclusively, so as to give effect to the deed, and the old cases, there- 
 fore, are no longer considered as authorities. {PugJi v. Duke of 
 Leeds, Cooper's E. 714. Adams on Eject. 228, note c.) To repeat, 
 then, it does not seem necessary to allege any particular day for 
 
TME DECLARATION IN EJECTMENT. 399 
 
 tlie ouster, provided it appears from the declaration to be subse- 
 quently to the commencement of the term, and prior to the bring- 
 ing of the action; but it is more professional to lay a day certain, 
 and such is the better practice. ( Vide Merril v. Smith, Cro. Jac. 
 311. Same Case, Jenkins' E. 341.) 
 
 yill. It seems not to have been the practice formerly to permit 
 the declaration in ejectment to be amended until the landlord or 
 tenant had been made defendant, and, consequently, if the defend- 
 ants were such as to prevent the courts fuom granting the common 
 rule for judgment against the casual ejector, the plaintiff's lessor 
 was compelled to discontinue the action, and resort to a new 
 ejectment. {Roe v. Doe, Barn. E. 186) But it is presumed that 
 under the present practice the court would permit the lessor to 
 amend his declaration before appearance, provided the amendment 
 did no injustice to the tenant. Indeed, the doctrine of one Ameri- 
 can case is to the effect, that, in ejectment, where the rights of the 
 defendant are not affected by the proceeding, or he consents, 
 important amendments may be made to the declaration, on motion 
 of the plaintiff, at any stage of the proceedings, on such terms as 
 may be deemed proper. In that case the application was made 
 after judgment by default for an order striking out of the declara- 
 tion the name of one of the lessors of the plaintiff, and the motion 
 was granted. {Jaohson v. Stiles, 5 Cow. E. 418.) And in one 
 English case, at least, where, by mistake, the name of the tenant 
 in possession was inserted at the commencement of the declaration, 
 instead of that of the casual ejector, the court granted the rule for 
 judgment upon the common aflSdavit of service, and suggested 
 that if the tenant did not appear to the action, an application 
 should be made to amend the declaration ; thus impliedly sanction- 
 ing the doctrine that the plaintiff's declaration may be amended, 
 if need be, before tlie landlord or tenant has been made defendant 
 in the action. {Doe v. Roe, 9 Dow. P. C. 363.) 
 
 After an appearance by the defendant, the declaration can be 
 amended by order of the court, both in form and in matter of sub- 
 stance, where substantial justice will be promoted by such amend- 
 ment, and under the liberal principle which now governs the 
 practice of the courts, the declaration may be amended in respect 
 to the demise, the term, and in almost any other particular which 
 may seem necessary to bring the real parties to an issue and trial 
 before the court ; sometimes, as a matter of course, under the rules 
 
400 LAW OF EJECTMENT AND ADVEBSE ENJOYMENT. 
 
 of the court, and at other times by motion, where the amendment 
 may he allowed on such terms as shall do justice to the defendant. 
 
 It has been held that an amendment in ejectment may be made 
 in the time of the demise to prevent the action being barred, Lord 
 Mansfield declaring that "an ejectment is a mere fictitious action. 
 The demise is a mere matter of form ; it does not exist. It is not 
 like a real title." And after the motion was considered, the learned 
 chief justice declared : "It appears upon the affidavits that this 
 was an entry to avoid a fine ; and the demise is laid hefore the 
 plaintiff had made the entr^', instead of being laid after the entry. 
 We are all clearly of opinion that he ought to be at liberty to 
 amend upon payment of costs." {Doe v. Pilkington, 4 Burr. E. 
 2447, 2449.) And where in ejectment upon a forfeiture the demise 
 was laid anterior to the time of the forfeiture, the court of king's 
 bench of England permitted the lessor to amend his declaration, 
 upon payment of costs, after the record was made up, and the case 
 set down for trial. {Doe v. Miller, cited in Adams on Eject. 226, 
 note a.) This case seems to convey the principle of allowing an 
 amendment of the demise in an ejectment to its utmost limit, 
 according to the statement of the case, as given by Mr. Adams, in 
 the note above referred to. The ejectment Was brought upon a 
 covenant to finish certain buildings in a workmanlike manner 
 before the 29tli of September, 1813. The demise was laid on the 
 2^th day of March, 1813. The cause was set down for trial at the 
 first sittings in Middlesex, in Hilary term, 1814, but stood over 
 until the second sittings ; and two days before the second sittings, 
 a rule to show cause why the day of the demise should not be 
 altered to the 30th of September, was determined, and made abso- 
 lute immediately before the rising of the court on the morning of 
 the second sittings. 
 
 So, also, the English courts have permitted a new count to be 
 added upon a new deniise after three terms of the court had 
 elapsed, and the roll had been made up and carried in. {Doe v. 
 Armitage, 1 Dowl. & Ryl. E. 173.) But in another case the court 
 refused to allow the term of the demise to be enlarged, after the 
 same alleged in the declaration had expired, unless it was quite 
 clear that the amendment would work no injustice to the opposite 
 party. {Bradley v. Harper, 1 Barn. & Cres. E. 121.) And in the 
 state of Kentucky, the courts have decided that the demise cannot 
 be enlarged after judgment and expiration of the demise, even 
 
TBE DECLARATION IN EJECTilENT. ^01 
 
 where the proceedings have been stayed hy injunction. {Owings 
 V. Marshall, 3 Bibb's R. 27.) Altliougli the same courts have held 
 that the plaintiff in ejectment may be permitted before trial to 
 amend his declaration, so as to make the demise subsequent to the 
 date of his title. {Rogers v. Burnett, 4 Bibb's E. 480.) And yet 
 they will not allow the plaintiff in ejectment to amend his decla- 
 ration by adding a new count containing a demise from another 
 person than the one charged in the original declaration, and for a 
 tract of land not before claimed, nor a new count stating a demise 
 after the commencement of the action. {Thomas v. Head, 1 Mar- 
 shall's E. 450. Cox V. Zacij, 3 Litt. E. 334. Dudley v. Grayson, 
 6 Monroe's E. 200.) 
 
 The rule in respect to amendments of the declaration in the action 
 of ejectment, in the states of New York, New Jersey, Pennsylva- 
 nia, Maryland, Virginia and North Carolina, seems to be substan- 
 tially like that laid down by the English courts in the authorities 
 above cited ; that is to say, the plaintiff will be allowed to amend 
 his declaration by adding new demises, by enlarging or changing 
 the date of the demise, or by striking out one of several demises, 
 and the like, on such terms as shall appear to the court equitable 
 and just. ( Vide Jackson v. Murray, 1 Cow. E. 156. Jackson v. 
 Bailey, 5 ib. 265. Jackson v. Smith, 6 ib. 39. Jackson v. Travis, 
 3 ib. 356. Jackson v. Heynolds, 1 Caine's E. 20. Jackson t. Den- 
 nis, 2 ib. 177. Anonymous, Ib. 261 and 265. Jackson v. Ditz, 
 1 Johns. Cas. 392. Jackson v. Richmond, 4 Johns. E. 483. Mar- 
 tin V. Lake, 3 Hill's E. 475. Anonymous, 3 Halstead's E. 366. 
 Den V. Franklin, 2 Southard's E. 850. Den v. Taylor, 2 Green's 
 E. 81. Wood V. Grundy, 3 Harr. & Johns. E. 13. Turner v. 
 Wartington, 5 ib, 437. Broxon v. Lutterloh, Cameron & Nor- 
 wood's E. 425. Den v. Enoin, 1 Hayward's E. 323. Den v. 
 Ingraham, Ib. 501. Hunter v. Fairfax's Devisee, 1 Munford's E. 
 218. Middle v. lessee of Findley, 6 Serg. & Eawle's E. 227. 
 Man's Lessee v. Montgoi/nery , 10 ib. 192. Irish v. Scovell, 6 Binn. 
 E. 55. Campbell v. Grantz's Lessee, Ib. 115. Lessee of Woods v. 
 Galbraith, 2 Yeates' E. 526.) And in the state of Pennsylvania 
 it is held, that the declaration in ejectment may be amended the 
 same as in other actions. {Den v. Smith, 2 Penn. E. 710.) 
 
 The supreme court of the United States, at an early day, held, 
 that in ejectment the date of the demise in the declaration may 
 be amended during the trial so as to conform to the title. So held 
 51 
 
402 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 on error to the circuit court of the district of Tennessee, where 
 such an amendment was allowed ; and Chief-Justipe Marshall, in 
 delivering the opinion of the court, said : " In an ejectment the 
 lease is entii-ely a fiction, invented for the purpose of going fairly 
 to trial on the title. Courts have expressed a full discretion in 
 allowing it to be aniendcd. A plaintiff has frequently been 
 allowed to enlarge the term where it has expired before a final 
 decision of the cause. Between making the term extend to a more 
 distant day, and commence at a later day, the court can perceive no 
 difference in substance. They are modifications of the same power, 
 intended to effect the same object ; and altliough not precisely the 
 same in form, the one is not greater in degi'ee than the other. The 
 amendment, therefore, was properly allowed." {Blackwell v. Pat- 
 ton, 7 Cranch's R. 471, 480.) But in later cases, in the same court, 
 it has been held, that in ejectment an amendment, so as to enlarge 
 the term laid in the declaration, will be permitted in the discretion 
 of the court ; and that a writ of error will not lie in a case where 
 the court below has denied a motion for this purpose. ( ^¥alden v. 
 Craig, 9 "Wheaton's E. 576. Chirac v. lieinicker, 11 ib. 280. 
 Wright v. Hollingsworth, 1 Peter's E. 168. PicketCs Heirs v. 
 Legerwood, 7 ib. 144.) But the permission to the plaintiff to 
 amend his declaration in ejectment will not be extended to the 
 injury of the defendant; and therefore the English court of king's 
 bench would not suffer the demise to be altered to a day subse- 
 quent to the day of the delivery of the declaration, on the ground 
 that this would be to give the lessor of the plaintiff a right of 
 action which did not subsist at the time of the commencement of 
 the action. {Doe v. Jeffries, cited in Adams on Eject. 227, note a.) 
 The same doctrine was.held in the state of Kentucky, although it 
 was declared by the Court that if the amendment of the declara- 
 tion, laying a demise after the commencement of the action, was 
 not opposed by the defendant, the judgment will not be reversed 
 in the court of appeals. {Cox v. Lacy, 3 Litt. E. 334.) 
 
 An amendment of the declaration in ejectment has been allowed 
 by the insertion of a local description of the premises, where all 
 local description had been previously omitted. {Doe v. Bath, 
 2 Nev. & Man. E. 440. And Doe v. Dyeball, 1 Mood. & Eob. E. 
 330. Same Case, 8 Barn. & Ores. E. 70.) And the English courts, 
 as well as the American, have often allowed the enlargement of 
 the term after it has expired, after the cause has gone down for 
 
TBB DECLARATION IN EJECTMENT. 403 
 
 trial, and even after the judgment has been affirmed. (Eoe v. 
 Mlis, Black. R. 940. Vicars v. Heydon, Comp. E. 841.) Such 
 permission, however, has been refused where a large number of 
 years had elapsed, in one case fifty years, and in another twenty 
 years, since the date of the original judgment. {Bradney v. 
 Harper, 1 Barn. & Ores. E. 121. Doe v. Tuclcett, 2 Barn. & Aid. 
 E. 773.) 
 
 The plaintiff will not be permitted to amend his declaration by 
 inserting a demise from a person who has no claim nor any sub- 
 sisting title to the premises in question. [Jackson v. liiohmond, 
 4 Johns. E. 483.) Neither will the court allow an amendment of 
 the declaration in ejectment, by adding a new demise, where the 
 proposed lessor's title is barred by the statute. {JacTcson v. Mur- 
 ray, 1 Cow. E. 156.) 
 
 A mistake in the declaration in ejectment, by naming the tenant 
 in possession as the defendant instead of Eichard Eoe, is not so 
 material but that the court will grant a rule nisi for judgment 
 against the casual ej'ector. {Doe v. lioe, 9 Dowl. P. C. 363.) And 
 where the name of the tenant in possession was inserted at the 
 commencement of a declaration by mistake, instead of that of the 
 casual ejector (the proceedings in other respects being regular), 
 the court of king's bench granted the rule for judgment upon the 
 common affidavit of service, and suggested that, if the tenant did 
 not appear, an application should be made to amend. {Doe v. Roe, 
 1 Chitty's E. 573, note. Anonymous, 2 ib. 173.) 
 
 If the term expires before the trial, the plaintiff has sometimes 
 been permitted to proceed for his damages and costs, though not 
 for the recovery of his land. This was permitted when the old 
 principles of the action prevailed, and the same rule has been 
 sometimes applied in the modern practice by which the action of 
 ejectment is regulated. {Cassel v. Saltonstall, 3 Mod. E. 249. 
 Lessee of Brown v. Galloway, 1 Peter's Circuit Court E. 291, 299. 
 Lessee of Eugan v. Phillips, 4 Yeates' E. 382. Murray v. Gar- 
 retson, 4 Serg. & Eawle's E. 130.) 
 
404 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 CHAPTER XXI. 
 
 OF THE NOTICE TO APPEAR IN THE MODERN ACTION OF EJECTMENT — 
 THE REQUISITES OF THE NOTICE THE AMENDMENT THEREOF. 
 
 The practice requires that a declaration in ejectment be accom- 
 panied, in all cases, with a notice requiring the defendant to appear 
 and plead to the action. Sometimes tlie notice is expressly required 
 by statute, with a specific direction in respect to its contents. Where 
 this is the case, the statute should be consulted, and the notice 
 made out in the terms specifically directed. But where no statute 
 exists upon the subject, the practice is quite well settled by the 
 rules and decisions of the courts. The notice is usually placed at 
 the foot of the declaration, and tlie name of the tenant affixed to 
 it ; and, where the possession of the disputed premises is divided 
 among several, it is usual to prefix the names of all the tenants to 
 each declaration. Indeed, it has been held, that, where joint-tenants 
 are in possession, the names of all must be prefixed ; and that, if 
 the notice to appear be addressed to one only of the joint-tenants, 
 it is irregular, and will not entitle the lessor of the plaintiff to 
 move for judgment against the casual ejector. (Z)oe v. lioe, 10 
 Moore's R. 493.) Although, where the notice contains the names 
 of many tenants, it seems to be suflBcient that the copy served on 
 each contains the name of the one only on whom the declaration 
 and notice are served. {Doe v. Roe, 1 Har. & Woll. R. 516. Boe v. 
 Hoe, 7 Term R. 471.) And it seems, that the notice at the foot 
 of a declaration in ejectment may be directed to each of several 
 defendants separately, and need not be directed to all. {Doe v. 
 Boe, 4 Jurist, 1134.) And, in one case, it was held, that where 
 several tenants have been duly served, judgment may be entered 
 against the casual ejector, although the notice was not addressed 
 to any or either of such tenants. {Doe v. Boe, 5 Moore's R. 73.) 
 But this can hardly be regarded as safe practice, although it may 
 answer, where, as in the case in Moore, the tenant was duly served 
 with a copy of the declaration and notice before the first day of 
 the term, and acknowledged the service. 
 
 It has been held, that the notice at the foot of the declaration in 
 ejectment must contain the christian name of the tenant, and that 
 it is not sufficient to swear to the identity of the person served. 
 
TSB NOTICE TO APPEAR IN EJECTMENT. 405 
 
 But the same case held, that the second name of the tenant iA 
 possession, both in the declaration and notice, may be in initials. 
 {Doe V. Roe, 1 Chitty's E. 573.) But it is to be collected from 
 the tenor of the later cases, that the insertion of a wrong chi-istian 
 name, or the omission of the christian name altogether, will not 
 invalidate the notice. {Doe v. lioe, 2 Dowl. P. C. 517. Doe v. 
 JRoe, lb. 567. Doe v. Hoe, 3 ib. 563. Doe v. Hoe, 6 ib. 62. Doe 
 V. Hoe, Ib. 629. Doe v. Hoe, 9 ib. 340. Doe v. Hoe, 5 ib. 716. 
 Anonymous, 1 Chitty's' E. 573, note a.) The reason of the rule 
 seems to be, that the defendant would otherwise have the advan- 
 tage of a plea in abatement, wliich never is allowed in the action 
 of ejectment. ' {Doe v. Hoe, 6 Maule & Selwyn's E. 203.) But, 
 as in the other instance suggested, the safe jpractitiouer will be 
 careful to have the notice properly addressed to the tenant in pos- 
 session, with his full christian and surname, although it is seldom 
 necessary that a middle christian name be inserted ; and it has 
 been held, that a notice directed " to the personal representatives 
 of A. E." (the deceased tenant) is not sufficient. {Doe v. Hoe, 
 1 B. Moore's E. 113. Doe v. Rurst, 1 Chitty's E. 162.) And, 
 again, -that a notice addressed to A. E., and served upon C. D., 
 will be insufficient. {Doe v. Hoe, 6 Dowl. P. C. 254.) 
 
 In the notices attached to declarations in ejectment, each tenant 
 being rightly named in his own notice is sufficient, as before stated; 
 and, therefore, an alteration in the name of a tenant in the notice 
 served in the others is immaterial, if it appear by affidavit that thei, 
 person served is the person intended. {Doe v. Hoe, 6 Dowl. P. 0. 62.) 
 And where there were several tenants in possession who were all 
 served, and after the service it was discovered that the name of 
 one had been mis-spelt, the name was altered with the tenant's 
 consent. The court allowed the previous service to stand, and 
 held it good as against the others. {Doe v. Hoe, 1 Arnold's E. 386. 
 Same Case, 2 Jur. 945.) So the court will grant the rule for judg- 
 ment against the casual ejector, although in the notice served on 
 two of the tenants the christian name of a third tenant is omitted. 
 {Doe V. Hoe, 6 Dowl. P. 0. 629.) So, where there are thirteen 
 tenants in possession, and they have all been personalty served 
 with the declaration and notice, it is no objection that the christian 
 names of two of them have been omitted in all the notices. {Doe 
 V. Hoe, 6 Dowl. P. C. 629.) And if the name of the tenant is 
 improperly spelled in the notice served on another, it is immate- 
 
406 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 rial tor the service on the latter. {Doe v. Eoe, 5 Dowl. P. C. 716.) 
 Where the christian name in the notice to a declaration in eject- 
 ment is incorrect, the court hold it to be sufficient, if there is an 
 affidavit that the person served is the person intended, even though 
 the tenant served does not give his consent tliat the name may 
 be corrected. {Doe v. Roe, 3 Dowl. P. C. 14, 563. Doe v. Boe, 
 1 Har. & "W. E. 217.) And if the service is regular, it has been 
 held that the substitution of " Jacob " for " Sarah " in the notice 
 is immaterial. {Doe v. Roe, 2 Dowl. P. C. 567. Doe v. Roe, 1 Will- 
 more, Wollaston & Hodge's R. 584.) xind in one case a rule to 
 show cause why a service should not be deemed good, was granted 
 by the court, though the christian name of the tenant could not 
 be discovered. {Doe v. Roe, W., W. & Davison's R. 607.) 
 
 Where the notice at the foot of the declaration in ejectment was 
 directed to "E. Newton," and served on "E. A. ISTewton," and it 
 appeared by affidavit that the latter was the person intended, the 
 court held the notice and service sufficient. {Doe v. Roe, 9 Dowl. 
 P. C. 340.) 
 
 The notice at the foot of a declaration in ejectment has been held 
 in Kentucky to be in the nature of process, and cannot, tlierefore, 
 be aided by any statement of the person serving the declaration, 
 or by the defendants appearing and excepting, unless the defend- 
 ants enter into the common rule. {Craig v. Clarh, 3 Marsh. E. 252.) 
 And in the state of ITew York it has been held that, inasmuch as 
 the action of ejectment can only be commenced by the service of a 
 aeelaration, with the required notice in writing subjoined, such 
 declaration is in the nature of process ; that is to say, it is in the 
 nature of process, because it is made the substitute for process in 
 bringing the defendant into court. In no other sense can a decla- 
 ration be regarded as even in the nature of process ; as its name 
 imports, process is something issuing out of, and returnable to, 
 the court; it is generally, if not always, synonymous with writs; 
 it is to be issued in the name of the people ; it is tested ; it bears 
 the seal of the court ; it is made returnable to the court at a speci- 
 fied time. The declaration and notice in ejectment contain some 
 of the ingredients of process, and perform the office of getting 
 the defendant before the court ; but they are not process within 
 the meaning of the statutes of New York, requiring process to be 
 made returnable within the two weeks of the term of court. {Bortt 
 V, Griffin^ 5 Wend. E. 84, Knapp v. Pults, 3 How. Pr, E. 53.) 
 
THE NOTICE TO APPEAR IN EJECTMENT. 407 
 
 The notice subjoined to a declaration in ejectment must require 
 the tenant to appear, and apply to the court to be admitted defend- 
 ant instead of the casual ejector, within a certain time after the 
 declaration is delivered ; ajid in England, the time when the notice 
 should require the tenant to appear and apply to be made defend- 
 ant, was formerly regulated by the locality of the premises. But 
 in America the practice usually requires that the notice should 
 specify some day in the next general term of the court, to be held 
 in the county in which the declaration is to be filed. {Knapp v. 
 Pults, 3 How. Pr. R. 53.) And in Kentucky, a notice which 
 requii-ed the defendant to appear " on the first day of the next term 
 of the circuit court," without naming the court, was held to be bad. 
 {Beall V. Siverts, 1 Marsh. R. 154.) 
 
 The English statute, 1 "William IV, chapter 70, section 36, pro- 
 vides that the notice in the cases specified in the statute, must 
 invariably require the tenant to appear within ten days after the 
 delivery of the declaration. In all other cases than those specified 
 in the statute, when the premises are situated in London or Mid- 
 dlesex, the notice should be for the tenant to appear " on the first 
 day " of the term next after the delivery of the declaration, speci- 
 fying the term by name ; but it is said by Mr. Adams, that it will 
 be sufficient if the notice be to appear generally of the term, in 
 which case the tenant will have the whole term to appear in. 
 This is probably a correct view of the practice, although Mr. 
 Adams cites no authority to sustain the statement which he makes; 
 that is to say, no authority is cited in connection with the state- 
 ment. And yet the decisions are abundant to sustain the principle 
 of the position taken. For example, the court granted a rule nisi 
 for judgment, when the notice was of the wrong term, but the 
 tenant in possession was informed of the mistake after the service 
 of the declaration and notice. {Anonymmis, 2 Chitty's R. 171.) 
 So when a declaration was entitled of Michaelmas term, 54 George 
 III, instead of 55 George III ; but the notice was dated on the 
 11th of January, 1815, requiring the tenant to appear " in next 
 Hilary term ; " the court held it to be sufficient. {Goodtitle v. Roe, 
 2 Chitty's R. 172.) So, also, when the notice was in " Trinity term 
 next," instead of " Hilary term next," the court granted the rule 
 for judgment. {Doe v. Graves, 2 Chitty's R. 172.) A declaration 
 not entitled of any term, delivered before the essoign day of 
 Hilary term, with a notice, dated on the first day of Janiiary, to 
 
408 LAW OF EJECTMEHT AND ADVERSE ENJOYMENT. 
 
 appear within the first four days of the next term, was held 
 sufficient by the court. {Goodtitle v. BadtiUe, Hilary Term, 1818, 
 C. B., M. S.) And a declaration delivered in Hilary vacation, 
 entitled of Easter terra, with a notice to appear on the first 
 day of the next term, was held good for an appearance as of 
 Easter term. {Anomjmous, K. B., E. T., 1817, M. S.) But where, 
 in the notice, the tenant was required to appear in eight days of 
 St. Hilary term, instead of as of Hilary term generally, the court 
 would not allow final judgment to be signed, but left the party to 
 bring a fresh action, holding the service to be irregular and void. 
 {Lackland v. Badlands 8 Moore's E. 79.) 
 
 If a declaration is duly served before the essoign day, the 
 omission in the notice of the term in which the tenant is to 
 appear, has been held to be immaterial. {Doe v. Roe, 1 Tyr. E. 
 280.) And a notice at the foot of the declaration, advising the 
 tenant to appear, and defend in due time, has also been held to be 
 sufficient. {Doe v. Roe, 2 ISTev. & Man. E. 476. Doe v. Roe, 2 
 Dowl. P. C. 420.) But a notice at the foot of a declaration in 
 ejectment, omitting to state that the consequences of the action 
 not being defended will be the turning of the tenant out of pos- 
 session, has been held to be insufficient, but that the same might 
 be amended on terms. {Doe v. Roe, 3 Dowl. P. C. 336.) 
 
 When the notice at the foot of the declaration in ejectment 
 required the tenant to appear in the king's bench, and the court 
 having, since the service thereof, become the queen's bench, by 
 the demise of tlie crown, a jiidgment was granted against tlie 
 casual ejector, the same as though no change had occurred in 
 the name of the court. {Doe v. Roe, W. W. & D. E. 606. Same 
 Case, 6 Dowl. P. C. 86.) And the court refused in one case to set 
 aside a declaration in ejectment in which the notice was dated of 
 a day subsequent to the notice of the declaration. {Doe v. Roe, 
 1 Adolph. & Ell. R. 11.) 
 
 On a motion for judgment against the casual ejector, it was 
 stated that the notice subjoined to the declaration served was 
 dated 13th May, and that it called upon the tenant in possession 
 to appear next Easter term, but that the mistake was explained to 
 the tenant at the time the same was served ; the court granted a 
 rule nisi for judgment against the casual ejector, and as no cause 
 was shown to the contrary, the same was made absolute. {Doe v. 
 Roe, 5 Dowl. P. C. 667. Same Case, 1 Jur. 454.) And it has been 
 
TBE NOTICE TO APPEAR IN EJECTMENT. 409 
 
 held to be no objection to the notice at the foot of the declaration 
 in ejectment that it omits the word " Hilary." {Doe v. Roe, 8 
 Dowl. P. C. 308.) 
 
 When the notice subjoined to a declaration in ejectment 
 requii'ed the tenant to appear in Trinity term, and the declaration 
 was of the same term, the court granted a judgment against the 
 casual ejector for the premises claimed. {Doe v. Roe, 1 Am. E. 
 240.) 
 
 And the rule nisi for judgment against the casual ejector was 
 granted in Trinity term, when the declaration was served just 
 previous to the term, and the notice required the tenant to appear 
 in the next Easter term. {Doe v. Roe, 2 Hai-. & W. K. 138. 
 Same Case, 5 Dowl. P. C. 149.) So, also, it has been decided that 
 in a county ejectment the notice at the foot of the declaration may 
 be that the tenant appear in the next issuable term, and that judg- 
 ment may be moved for in that term. {Doe v. Roe, 4 Taunt. E. 738.) 
 
 The regular and correct practice requires tliat the notice at the 
 foot of the declaration in ejectment should be subscribed with the 
 name of the casual ejector ; and sometimes there is a statute 
 requiring the notice to be subscribed with the name and place of 
 residence of the plaintiif. ' But by the liberal rules governing the 
 courts, where no statute exists, the notice may be subscribed in the 
 name of the nominal plaintiff, or the lessor of the plaintiff; or 
 even if it be signed by a wrong name, the court will permit judg- 
 ment against the casual ejector to be entered up. {Peaceable v. 
 Troublesome, Earn. K. 172. Hazlewood v. Thatcher, 3 Term .R. 
 351. Goodtitle v. Notitle, 5 Barn. & Aid. E. 849.) 
 
 Where a declaration in ejectment is served with two notices 
 annexed, one requiring the appearance of the defendant, and the 
 other requiring the defendant to appear, and enter into recogniz- 
 ance pursuant to 1 George IV, chapter 87, the court granted the 
 common rule, holding, that on the appearance of the defendant, 
 the latter notice may be treated as surplusage. {Doe v. Roe, 
 -5 Dowl. P. C. 508.) And the notice at the foot of the declaration, 
 served in pursuance of the above statute, must be signed by the 
 landlord himself, or his agent,, and not by Eichard Eoe, in order to 
 give him the benefit of the sta'tute. {Anonymous, 1 Dowl. & Eyl. 
 E. 435, note.) Although on moving for the usual landlord's rule 
 under that statute, if the notice given to the tenant has been signed 
 by an agent of the landlord, no fiffidavit is required, proving, that 
 52 
 
410 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the person signing it is the landlord's agent. {Doe r. Roe, 1 "W., 
 W. & H. E. 346.) 
 
 An amendment of the notice at the foot of the declaration in 
 ejectment will be allowed in respect to any matter which the jus- 
 tice of the case may require. For example, in a country cause, 
 where the notice was to appear in Michaelmas term, where the 
 ordinary practice required that the notice should be to appear in 
 an issuable term, and it appeared, that if the lessor of the plaintiff 
 were not permitted to amend the notice, he would be barred by the 
 statute of limitations, an amendment was allowed by the court. 
 {Doe V. Roe, 1 Term E. 469.) And an amendment of the notice 
 was allowed, on application to the court, where the words " or you 
 will be turned out of possession of the same " had been omitted in 
 the notice through mistake. {Doe v. Roe, 3 Dowl. P. G. 336.) 
 So also, in the state of New Jersey, the notice at the end of the 
 declaration in ejectment was amended by order of the court, after 
 the same had been served, by striking out one day and inserting 
 another. {Den v. Laring, 4 Halstead's E. 254.) 
 
 CHAPTEE XXII. 
 
 OF THE SERVICE OF THE DECLAEATION VS EJECTMENT — -WHEN AND HOW 
 THE DEOLAKATION MUST BE SEETED — THE NOTICE OF THE SEETIOE 
 QF THE DECLAEATION TO THE LANDLOED. 
 
 The common-law action of ejectment is commenced by the serv- 
 ice of a declaration and notice, and the delivery of the same to the 
 tenant, therefore is governed by rales which resemble the service 
 of a writ more than the delivery of a declaration.* The only 
 notice which the tenant in possession of the premises in dispute 
 
 * By the present practice in England, the action of ejectment is commenced by 
 the service of a writ, directed to the person in possession of the land claimed, by 
 name ; and in many of the states the action is commenced by the service of a 
 summons, or other process than a declaration. The present practice in England 
 and in those states where the former rules in ejectment have been superseded by 
 others, will be given in the proper place hereafter. But the former practice in 
 ejectment is understood still to prevail in several of the states, and most of the 
 principles of the late practice are applicable in many respects to the current 
 practice. 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 411 
 
 gets of the plaintiff's proceedings, is from the declaration and 
 notice appended thereto. The courts, therefore, are very careful 
 to see that the declaration and notice have been properly served 
 on the tenant, and the nature and contents thereof intelligibly 
 explained to him, before they will authorize a judgment to be 
 entered against the casual ejector. In view of this fact, it is of 
 considerable importance that the subject of the time when and 
 the manner in which, the declaration and notice in ejectment are 
 to be served, be well understood ; and perhaps the matter will be 
 best comprehended by giving a short digest of the cases upon the 
 subject. 
 
 The service of the declaration must be eifected 'before the first 
 day of the term in which the notice at its foot directs the tenant 
 to appear. (Doe v. Itoe, 6 Dowl. P. C. 479.) And the declaration 
 must either be served personally on the tenant in possession of the 
 premises at the lime of the service.^ or satisfactory proof adduced 
 by affidavit on the motion for judgment against the casual ejector, 
 either that it duly reached his hands within the proper time, or 
 that the service could not be diily eflfected. Sometimes the manner 
 of the service of the declaration and notice in ejectment is pointed 
 out by statute ; and where this is so the terms of the statute must 
 be substantially complied with. 
 
 Except in some cases provided by statute, the defendant in eject- 
 ment must be the tenant in possession of the premises in dispute, 
 and ejectment will not lie against a person who is, to all intents 
 and purposes, out of possession. It must, therefore, appear that 
 the person or persons on whom the declaration and notice were 
 served was or were the tenant or tenants in possession at the time 
 the service was made. ( Wharton v. Clay, 4 Bibb's E. 167.) And, 
 so far as is practicable, the declaration and notice in ejectment 
 should he personally served on the tenant or tenants in possession ; 
 although circumstances may and often do exist, which render a per- 
 sonal service impossible or impracticable, when a different service 
 is substituted and accepted. 
 
 Where the service of the declaration and notice is personal, it is 
 immaterial whether it be upon the demised premises or elsewhere, 
 if within the jurisdiction of the court. {Savage v. Dent, Strange's 
 K. 1064. Taylor v. Jefts, 11 Mod. E. 302. Doe v. Woods, 1 Marsh. 
 K. 152.) And it has even been held, that Avhere the declaration 
 and notice in ejectment are personally served upon the tenant in 
 
412 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the actual possession of the demised premises, the service is suf- 
 ficient though effected while the defendant was not living within 
 the jurisdiction of the court in which the action is brought. {Doe 
 V. Woodraffe, 7 Dowl. P. C 494.) This statement, however, should 
 jirobably be qualified with the condition that the declaration and 
 notice in ejectment must in all cases be served within the nation or 
 the limits of the state, and that the service cannot be made upon 
 the party while out of the state, except the same is made under 
 some statutory provision for a substituted service. Indeed, it has 
 been held in the state of New York, that where the action is 
 brought in a court of local and limited jurisdiction, the declaration 
 must be served on the defendant while within the local jurisdiction 
 of such court. The court saying : " A declaration in a suit com- 
 menced by declaration is analogous to process, and process in a 
 suit commenced in the common pleas of one county cannot be 
 served in another. It would not be the regular and orderly con- 
 duct of a suit to file a liill against an ofiicer of a court in one 
 county, and serve him with a copy of such bill in another, and 
 upon the same principle the service of the copy of the declaration 
 in this case was irregular." {Ex parte Green v. Oneida Common 
 Pleas, 10 Wend. R. 592, 593. And vide Dunn v. Dunn, 4 Paige's 
 R. 425.) And yet, a defendant upon whom a declaration is served 
 beyond the territorial limits of the jurisdiction of the court in which 
 the suit is commenced, ma^^ waive the irregularity : for example, 
 by appearing in the action, or by obtaining an order against the 
 plaintiflf to file security for costs. {Ex parte Squires v. Broome 
 Conmwn Pleas, 10 "Wend. E. 600.) 
 
 Where the original tenant has under-let the demised premises, 
 after the term has expired, an ejectment may be maintained against 
 him for so much of the premises as his under-tenants have not 
 given up ; and although he is not in the actual possession, in such 
 case, the declaration and notice can be served on him, and he must 
 answer to the suit. {Roe v. Wriggs, 5 Bos. & Pull. R. 330.) And 
 if the service of the declaration and notice is made on the tenant 
 in possession, and he neglects to notify his landlord, and judgment 
 is taken against him by default, the same will be held regular, not- 
 withstanding the tenant's neglect to give his landlord the notice. 
 {Breeding v. Taylor, 6 B. Monroe's R. 62.) 
 
 It has been held that service of the declaration and notice in 
 ejectment on the servant of the tenant in possession of the demised 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 413 
 
 premises, with the acknowledgment of the attorney of tlie tenant 
 that such declaration and notice had been served, is sufficient for 
 judgment nisi against the casual ejector. {Doe v. Snee, 2 Dowl. 
 & Eyl. E. 5. Vide Marvin v. Bennismi, 20 Vt. R. 662.) Ordi- 
 narily, where the action of ejectment is brought by a landlord 
 against his tenant, and the tenant has under-let the premises, the 
 service of the declaration and notice must be made on the under- 
 tenant, or under-tenants, if more than one, and a service on the 
 original tenant will not be sufficient. For example, in ejectment 
 for premises which had been demised on lease to one person who 
 had under-let to others, it was held to be necessary to serve all the 
 under-tenants with a copy of the declaration and notice. And 
 where the tenant of a house locked it up and quitted it, and the 
 landlord, three months afterward, affixed a copy of a declaration in 
 ejectment with the usual notice to the door, the court held that the 
 service was not sufficient, but that the landlord should have treated 
 it as a vacant possession. {Doe v. Coclc, 4 Barn. & Ores. R. 259.) 
 
 Where a defendant, on being served with a declaration in eject- 
 ment assented to the character of tenant in possession, and after- 
 ward appeared and pleaded, it was held to be quite sufficient 
 evidence for a jury to find that he was the tenant in possession, 
 altiiough it also appeared that he was in the situation only of a 
 servant, and managed the leasings for the real owner on the prem- 
 ises. Abbott, C. J., observed : "As to the point suggested, that a 
 servant is not liable to an ejectment, it is going too far to b&j, tliat 
 under no circumstances that can be. There may be cases in which 
 the court would hold that ejectment would lie against a servant ;" 
 and Bailey, J., said : "Where a jervant is served with a notice in 
 ejectment as tenant in possession, it is competent for him to explain 
 his situation, and so to set the other party riglit ; or, as he seems 
 to have done in this case, to mislead him. If he adopts the latter 
 course, it is very possible that a jury may think that he ought to 
 be considered as the tenant in possession." {Doe v. Stanton, 1 Barn. 
 & Aid. R. 371. And vide Doe v. Stradling, 2 Starkie's R. 187.) 
 
 Where several persons are jointly in possession of the premises 
 in question, it has been said that the service of the declaration and 
 notice ought, in strictness, to be upon each party separately. (Bul- 
 ler's ISr. P. 98.) But the general rule is, that service upon one of 
 two joint-tenants in possession is sufficient; and it has-been held 
 in one of the circuit courts of the United States, that if all the 
 
414 LAW OP EJECTMENT AND ADVERSE ENJOYMENT. 
 
 defendants live in the same house upon the premises in question, 
 it is sufficient to deliver one copy of the declaration and notice. 
 {Gampbell v. Harper, 3 Wash. C. C. E. 356. Vide Roe v. Doe, 
 10 Moore's E. 493. i?oe v. ^oe, 2 DowL P. C. 418. Boev.Boe, 
 
 6 ib. 291.) But where the parties in possession are not joint-ten- 
 ants, then the general rule requires that the declaration and notice 
 in ejectment should be served on the tenants severally; and in 
 such a case, the common rule will be granted against the parties 
 actually served, and a rule nisi against the other parties. {Right 
 v. Wrong, 2 Chitty's E. 175. Doe v. lioe, Ib. 174. Anonymous, 
 Ib. 176. Doe v. Roe, 1 ib. 141. Doe v. lioe, 3 B. Moore's E. 578. 
 Doe V. Roe, 1 Bos. & Pull. E. 369. Doe v. Doe, 4 Dowl. P. C. 586, 
 591.) A plaintiif in an action of ejectment brought against eleven 
 persons in possession of distinct portions of the premises claimed, 
 holding by separate titles, though all derived from the same source, 
 but without any connection or community of interest between 
 them, will be compelled, on the application of the defendants, to 
 enter into a separate consent rule with each defendant. (Jackson v. 
 Scoville, 5 "VVend. E. 96.) Several defendants, however, may be 
 joined in one suit in ejectment, where the plaintiff's title in rela- 
 tion to all is the same, although their possessions may be several 
 •Mi^ not joint ; but in such case a copy of the declaration and 
 notice must be served on each defendant. {Jaohson v. Andrews, 
 
 7 Wend. E. 152. Jackson v. Wood, 5 Johns. E. 278. Camden v. 
 Hashill, 3 Eand. E. 462. Stewart^s Heirs v. Coalter, 4 ib. 74. 
 
 White V. Pichering, 12 Serg. & Eawle's E. 435.) This rule has 
 been applied where several persons were occupying diflFerent rooms 
 in the same house belonging to the plaintiff. {Marshall v. Wood, 
 5 Yt. E. 250.) 
 
 Service of the declaration and notice in ejectment on one of 
 several partners has been held sufficient against all of the copart- 
 ners ; and so has service of the same papers on one of the two ten- 
 ants who said the other was only his servant. {Doe v. Doe, 9 Dowl. 
 P. C. 1039. DocY. Roe, W., W. & D. E. 49. Doe v. Hall, Ib. 392. 
 Doe V. Eoe, Ib. 75.) But it has been held that service upon A. B., 
 where the notice was addressed to 0. D., although both were ten- 
 ants, was insufficient. {Doe v. Boe^ 5 Dowl. P. C. 255.) And in 
 one case of service upon one of two joint-tenants, who were also 
 partners in trade, a rule nisi only was granted. {Doe v. Eoe, 
 2 Chitty's E. 17.) 
 
SERVICE OF TSE DECLARATION IN EJECTMENT. 415 
 
 Provision is usually made by statute for the service of process 
 in actions against incorporated companies, and the declaration and 
 notice in ejectment may be served when the defendant is a coi-po- 
 ration in the same manner as process in any other action against the 
 same defendant. Generally, service of the declaration and notice 
 in cases against a corporation is made upon the secretary, managing 
 agent, or other principal officer of the company ; and in one case 
 the service upon the book-keeper of a company, who occupied 
 part of the premises sought to be recovered, was held to be a good 
 service. {Doe v. lioe, 1 Dowl. P. C. 23. And vide, also. Doe v. 
 Boe. 5 lb. 147. Doe v. Hoe, 8 ib. 134. Doe v. Hoe, ib. 858. Doe 
 V. Hoe, 6 Scott's E. 610.) So, also, service of the declaration and 
 notice in ejectment upon the clerk of a canal company, at the 
 office of the company, where the action was to recover a part of 
 the land of the canal claimed by the company, was held to be 
 sufficient. (Doe v. Hoe, 10 Mees. & Wels. E. 21.) But where the 
 action was brought to recover land illegally taken into a road 
 under a private act of parliament, and the service of the declara- 
 tion and notice was made upon one of the commissioners in whom 
 the road was vested, and their clerk, the rule was refused 
 altogether. {Doe v. Hoe, 8 Dowl. P. 0. 505.) 
 
 Where property in possession of parish officers is rented by 
 them for the purpose of accommodating the parish poor, service 
 upon the church wardens and overseers is held to be sufficient, 
 although they do not occupy the house otherwise than by placing 
 the poor in it ; but service upon one of them only will not 
 answer. {Tupper v. Doe, Barnes' E. 181. Doe v. Hoe, 5 Dowl, 
 P. C. 405.) 
 
 In ejectments for free schools, service of the declaration and 
 notice upon the master, and sticking the same on the door, and 
 service on a person resident in the school-house, have been held 
 good service. {Doe v. Hoe, 8 Dowl. P. C. 292. Doe v. Hoe 
 Ib. 509.) 
 
 "When the tenant has become bankrupt, service on the official 
 assignee only, and on a person "representing himself" as messen- 
 ger in possession has been held sufficient service to warrant the 
 ordinary rule. {Doe v. Hoe, 1 Dowl. P. C. 493. Doe v. Hoe, 6 ib. 
 456. But vide Doe v. Hoe, 8 ib. 492.) 
 
 The rule nisi for judgment has been granted against the casual 
 ejector, where the service was made on two of three assignees of 
 
416 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the tenant, who was a bankrupt and could not be found. {Doe v 
 Boe, W., W. & D. R. 219.) 
 
 So where the tenant is bankrupt, service of the declaration and 
 notice in ejectment upon the bankrupt himself, the official assignee 
 and the messenger in possession under the fiat, is sufficient to 
 justify the motion for judgment against the casual ejector, with- 
 out service also being eifected on the creditor's assignee. {Doe v. 
 Hoe, 1 Dowl. N". S. 493.) And if the tenant is bankrupt, service 
 of the declaration and notice in ejectment on one of the assignees, 
 who is stated to be tenant in possession, has been held to be good 
 service. {Doe v. Hoe, 6 Jur. 238.) And in a similar case, service 
 of the papers on the assignee and solicitor to the commissioner 
 was held sufficient for judgment against the casual ejector, and 
 service on the official assignee and the assignee of the. bankrupt, 
 was also held sufficient. {Doe v. Hoe, lb. 438. Doe v. Hoe, lb. 
 781, B. C.) 
 
 If the tenant in possession be a lunatic, the service of the 
 papers should be upon him, although he may be confined in a 
 lunatic asylum; unless he has been judicially declared a lunatic, 
 in which case the service should be on the committee. {Doe v 
 Hoe, 6 Dowl. P. C. 270. Doe v. Hoe, 9 ib. 484. Anonymous, 
 Lofft's R. 401.) 
 
 It seems that judgment may be entered up, where the 'service is 
 made on a person who has the care and custody of the tenant in 
 possession (a lunatic), and the management of his affairs, though 
 not appointed by a regular committee; and the rule nisi in such a 
 case should be generally to show cause, without being directed to 
 any party in particular. {Doe v. Hoe, ^ Chitty's R. 183.) And 
 service of a declaration and notice in ejectment upon a lunatic in 
 an asylum was held sufHcient. {Doe v. Hoe, 3 Man. & Gr. R. 87.) 
 
 Where the service of the declaration and notice in ejectment can- 
 not be made upon the tenant personally, a different service will be 
 accepted ; although, in all these cases where the service is not in 
 the regular or ordinary mannei-, a judgment by default for want 
 of an appearance should not be entered, until the court, on a rule 
 to show cause, has sanctioned the mode of service. {Den v. Fenn, 
 5 Halst. R. 247.) 
 
 A 'rule to appear and plead in ejectment was ordered by the 
 supreme court of the state of New York, under the old practice, 
 where the service of the declaration and notice was on the wife 
 
SERVICE OF TBE DECLARATION IN EJECTMENT. 417 
 
 of the defendant on the premises claimed. {Jackson v. Salisbury, 
 3 Wend. E. 430.) And it has often been held in England, that 
 service of the declaration and notice in ejectment on the wife of 
 the tenant in possession of his house, or on the premises, is suf- 
 ficient. {Doe V. Roe, 2 Bos. & Pull. R. 55. Ooodright v. Thrustout, 
 2 Wm. Bl. R. 800.) And it seems the papers may be served on 
 the wife of the tenant in possession on the premises in dispute, or 
 at the husband's house elsewhere. {Doe v. Bayliss, 6 Term R. 705. 
 Oates V. CoaUs, lb. 765, note. Doe v. lioe, 1 Dowl. P. C. 693. 
 Doe V. Eoe, 1 Hodge's R. 24. Doe v. Eoe, 1 Har. & W. R. 64G.) 
 But proof of service on the wife of the tenant in possession, with- 
 out stating that it was served at the husband's house, or on the 
 premises, is insufficient to support a rule for judgment against the 
 casual ejector. {Right v. Wrong, 2 Dowl. & Ryl. R. 84.) 
 
 "Where ejectment was brought to recover stables, service of the 
 declaration and notice on the tenant's wife, at his dwelling-house, 
 was held to be sufficient for judgment against the casual ejector. 
 {Doe V. Roe, 6 Dowl. P. C. 456. Same Case, 1 Arn. E. 131. Same 
 Case, 2 Jur. 34.) But, if the service be not made on the premises, 
 it is not sufficient, unless it appears that the woman or^ whom the 
 service was made was living with the tenant in possession as his 
 wife. (Z>oe v. ^o«, 1 Dowl. P. 0. 312. Doe v. Roe, 2 ib.W. Doe 
 V. Roe, 6 ib. 182. Doe v. Roe, 7 ib- 463. Jenny v. Cults, 5 Bos. 
 & Pull. R. 308.) If the service is made on the premises, it is 
 sufficient, though it be not shown that the husband and wife were 
 living together. {Goodtitle v. Badtitle, 1 Chitty's E. 499. Same 
 Case, 4 Taunt. R. 820.) And it was thought at one time, that if 
 the service was made at the husband's dwelling-house, though off 
 the premises, it was not necessary to show that the wife was living 
 with him. {Anonymous, 1 Chitty's R. 500, note.) But the con- 
 trarj' is now held by the later authorities. 
 
 Service of the declaration and notice on the wife of the tenant, 
 "near the premises," is sufficient for a rule nisi for judgment 
 against the casual ejector. {Doe v. Roe, 7 Dowl. P. C. 692. Same 
 Case, 3 Jur. 1032, B. C.) And service on the wife in a shed, 
 where the husband carried on his business, is a good service, 
 although not forming part of the premises sought to be recovered, 
 but closely adjoining them. {Doe v. Roe, 1 Dowl. P. C. 67.) So 
 also service was held sufficient where the declaration was left in 
 the shop where the wife of the tenant in possession was, who 
 53 
 
418 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 refused to hear the notice read, and went out and shnt the door 
 after her. {Doe v. Roe, 2 Wils. E. 263.) And where tlie wife of 
 the tenant was tendered a copy of tlie declaration on the premises, 
 which she refused to take, the court held the service sufficient for 
 a rule nisi for judgment against the casual ejector. {Doe v. Roe, 
 8 Dowl. P. C. 305. Same Case, 4 Jur. 557.) 
 
 Service of the declaration and notice in ejectment on the prem- 
 ises on a woman representing herself to be the wife of the tenant 
 in possession, and so reputed to be, and who was living with the 
 tenant, was held sufficient for a rule nisi. {Doe v. Roe, 8 Dowl. 
 P. C. 135.) And even where it simply appeared that the service 
 was made on the premises upon a woman who represented herself 
 to be the wife of the tenant in possession, the court held the service 
 sufficient for the rule. {Doe v. Roe, 4 Moore & Payne's E. 11.) 
 But service on a woman representing herself to be the wife, the 
 affidavit of service not stating the deponent's belief that she was 
 BO, was held insufficient. {Doe v. Roe, 1 Chitty's E. 228.) 
 
 Where the service of the declaration and notice in ejectment 
 was made upon the premises on the wife of the brother of the 
 tenant in possession, who afterward said she should go and see the 
 tenant, and the next day she left the premises,, the court granted 
 the rule nisi for judgment against the casual ejector. {Doe v. Roe, 
 1 Har. & W. E. 371.) So also service on the wife of the tenant 
 next door to the premises, and on the mother-in-law of the tenant 
 on the premises (the tenant in both cases acknowledging the 
 receipt of the declaration before the term), was held abundantly 
 sufficient for jucgment against the casual ejector. {Doe v. "Lincoln, 
 5 Jur. 1182, B. C.) 
 
 But where, a declaration and notice in ejectment having been 
 nailed upon the door of the premises, the tenant's wife called upon 
 the person who had attempted to serve the ejectment, and requested 
 to know what she was to do with the paper ; he explained it to her, 
 and recommended her to go to the plaintiff's attorney ; she replied 
 she would see her husband immediately, and recommend him to 
 do so ; the court held, that this was not a good service. {Doe v. 
 Roe, 2 Compton & Jervis' E. 202. Same Case, 2 Tyr. E. 211. 
 Sams Case, 1 Dowl. P. C. 312.) 
 
 The mere acknowledgment of the wife of the tenant in possession, 
 that she had received a declaration in ejectment, will not bind the 
 husband ; and the court will not allow a wife's declaration, with 
 
SERVICE OF THE BECLABATION IN EJECTMENT. 419 
 
 respect to her husband being out of the way, to avoid being arrested 
 or annoyed, to be used for the purpose of obtaining judgment against 
 the casual ejector. {Goodtitle v. Badtitle, 1 Bos. & Pull. K. 384. 
 Same Case, 1 Chitty's E. 121. Doe v. Smith, 3 Dowl. P. C. 379.) 
 
 In some cases the service of the declaration and notice in eject- 
 ment may be made upon other members of the family of the tenant 
 in possession than the wife. For example, where the service was 
 effected upon the mother-in-law of the tenant in possession upon 
 the premises, and the wife of the tenant stated on the day before 
 the term that the papers had been handed to her, and all this 
 appeared by affidavit; the court granted a rule nisi for judgment 
 against the casual ejector. {Doe v. Moe, or Peel, 1 Dowl. N. S. 543. 
 Same Case, 6 Jur. 325, B. C.) But it was held that service of the 
 papers upon the mother of the tenaflt in possession is not suflBcient. 
 {Doe V. lioe, 1 Dowl. P. C. 614.) Service of the declaration and 
 notice on a daughter of the tenant in possession on the premises, 
 previous to the term, with an acknowledgment by her, after the 
 commencement of the terra of the court, that she had given the 
 papers to her father, was held sufficient for a rule nisi for judgment 
 against the casual ejector. {Doe v. lioe, 1 Dowl. N. S. 261, B. C.) 
 But it was held that the service of a declaration and notice in eject- 
 ment on the mother of the tenant on the premises is not sufficient 
 even for a rule nisi for judgment against the casual ejector. {Doe 
 V. Roe, 1 Har. & W. R. 646.) Service of the declaration and notice 
 on a brother of the tenant in possession was held bad, for want of 
 an acknowledgraeht by the tenant that he had received the papers. 
 Had it appeared that the tenant acknowledged the recei])t of the 
 papers, the service'would have been regarded as good. {Right v. 
 Roe, 2 Chitty's E. 180.) And the court also refused a rule nisi for 
 judgment against the casual ejector, where it appeared that service 
 of the declaration and notice in ejectment had been made the day 
 before the term on the brother of the tenant in possession on the 
 premises, who stated that both the tenant and his wife were out 
 of town, that he could not give their address, but that he would 
 deliver the declaration to his brother. {Doe v. Roe, 6 Jur. 15, B. C.) 
 
 Upon notice for judgment against the casual ejector, it was 
 Bworn that service had been effected upon the sister of one J., a 
 tenant on the premises; on a subsequent day S., another tenant, 
 who had been also served by the declaration, and notice being left 
 with his sister on the premises, acknowledged the receipt of hia 
 
420 LAW OF BJUCTMENT AND ADVERSE ENJOYMENT. 
 
 papers in his own case, and stated tbat J., whom he described as 
 his under-tenant, had handed over to him the papers left for him, 
 and tliat he had delivered them to their superior landlord ; the 
 court held there were no sufficient grounds for judgment against J. 
 {Doe V. Eoe, 1 Dowl. N. S, 704, C. P.) 
 
 The court granted a rule nisi for judgment against the casual 
 ejector, where the service had been on the servant of the tenant in 
 possession; the tenant having appointed an attorney, and the 
 servant stating that she had given the declaration to the tenant, 
 her master. {Anonymous, 6 Jar. 371, B. C.) But where service 
 in ejectment had been effected on the servant of the tenant on the 
 premises, who promised to convey the papers which were left with 
 him to his master, and the premises were subsequently found to 
 be deserted, the court refused to grant even the rule nisi for judg- 
 ment against the casual ejector. Doe v. Roe, 2 Dowl. N. S. 333.) 
 
 It has been held that a rule 7iisi for judgment against the casual 
 ejector may be obtained where the service of the declaration and 
 notice is effected on the sister of the tenant in possession of the 
 premises, who subsequently acknowledged that the copy had been 
 given to her brother before the term. {Doe v. Roe, 4 Jur. 699, B. C.) 
 
 But service of the declaration and notice in ejectment upon the 
 sister of the tenant in possession, who says that she receives the 
 papers on behalf of her sister, has been held by the court not to be 
 good unless agency be shown. {Doe v. Roe, 3 Dowl. P. C. 380.) 
 And it has been also held, that service of a declaration and notice 
 in ejectment on the sister of the tenant in possession, resident at 
 his dwelling-house, is not, of itself, sufficient ground for a rule to 
 show cause for judgment against the casual ejector. {Doe v. Roe, 
 6 Jur. 57, Exch.) Where the tenant in possession was ill, service 
 on the daughter of such tenant, who read and explained the decla- 
 ration to her father, was held sufficient. {Doe v. Roe, 1 Dowl. P. 
 C. 692.) And the court of king's bench granted a rule to show 
 cause why the service of the declaration and notice in ejectment 
 on a son of the tenant in possession (who said that his father was 
 unable to attend to any business, and a subsequent admission by a 
 person, who, the defendant believed, was the wife of the tenant in 
 possession, that her husband had received it), should not be deemed 
 good service. {Anonymous, 2 Chitty's E. 182.) 
 
 It has been held, that service of the declaration arid notice in 
 ejectment, by leaving it with the daughter of the tenant in posses- 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 421 
 
 sion (who was confined by indisposition), coupled witli an aflBdavit 
 tliat she acknowledged the receipt of the declaration and notice, 
 and that she had read them over and explained them to her mother 
 before the essoin day of the term, is sufficient for a rule nisi for 
 judgment against the casual ejector. {Doe v. Eoe, 2 Dowl. & Eyl. 
 R. 12.) But service of the declaration and notice upon a son, who 
 accepted the service, and said he knew what the papers were for, 
 and that he would deliver them over to his father, was held bad, 
 although it appeared that both father and son were attorneys. 
 {Anonymous, Woodfall's Landlord and Tenant, 386.) And service 
 in ejectment on the son of a tenant in possession is held insufficient, 
 unless it be shown that he is living with his parent, and composes 
 a part of his family. {Doe v. Roe, 6 Dowl. P. C. 736.) But such 
 service on the son is deemed sufficient for a rule nisi for judgment 
 against the casual ejector, where it seems reasonable to suppose 
 tliat the declaration has come to the tenant's hands. {Doe v. Hoe, 
 6 Dowl. P. C. 765. Same Case, 1 W., W. & H. R. 347.) 
 
 Service of the declaration and notice in ejectment on the 
 daughter of the tenant in possession, coupled with the fact of 
 the tenant afterward calling on the attorney of the lessor of the 
 plaintiff, and saying that he knows that the time is coming "when 
 something must be done," is sufficient ground for the court to 
 grant a rule for judgment against the casual ejector. {Doe v. Hoe, 
 6 Dowl. P. C. 624.) But service of the papers on the daughter on 
 the premises, it seems, will not suffice, unless it is shown that the 
 declaration came to the hands of the father with proper explana- 
 tions. {Doe v. Eoe, 2 Dowl. P. C. 414. But vide Doe v. Hoe, 
 1 Har. & "W". E. 199.) 
 
 Where it is not practicable to serve the declaration and notice 
 in ejectment on the tenant in possession personally, the general 
 rule would seem to be^ that the same may be served, on the prem- 
 ises, upon the wife or other member of the family having charge 
 in the absence of the tenant, provided such declaration and notice 
 came to the knowledge of the defendant in due time before the 
 term at which he is required to appear ; and in some cases, when 
 the premises are in the actual occupation of the tenant, where the 
 best service is made of the papers that can be made under the 
 circumstances, the court will grant a rule nisi for judgment 
 against the casual ejector. {Doe v. Hoe, 1 Har. & W. R. 199. 
 Doe V. Hoe, lb. 352. Doe v. Roe, 9 Dowl. P. C. 100. Doe v. Hoe, 
 
422 LAW OF F.TEOTMENT AND ADVERSE ENJOYMENT. 
 
 5 Jiir. 1134, B. C. Doe v. Roe, 7 Scott's R. 121. Doe v. Roc, lb. 
 124. Doe V. Roe, 2 ib. 378.) But, as a general thing, tlie service 
 of the papers on any other member of the family of the tenant in 
 possession than his wife will not be deemed sufficient, unless it be 
 shown that the papers, in due time, came to the hands of the ten- 
 ant. ( Vide Doe v. Roe, 4 Moore & Scott's E. 562. Doe v. Roe, 
 3 Dowl. P. C. 9.) 
 
 Service of the declaration and notice on the daughter of a bed- 
 ridden tenant on the premises lias been held to be sufficient for a 
 rule nibi against the casual ejector. The presumption in such a 
 case is pretty strong, that the papers came to the hands of the 
 tenant. And if it is made to appear that the tenant is keeping 
 out of the way to avoid service of the papers, the court will grant 
 the rule nisi for judgment, on proof of a regular service of such 
 papers, on the premises, upon a son or daughter of the age of dis- 
 cretion apparently in charge. {Doe v. Roe, 8 Dowl. P. C. 301. 
 Doe V. Roe, 3 ib. 575.) And service of the papers on the nephew 
 of the tenant in possession, where the latter refuses to be seen, has 
 been held sufficient for the rule nisi for judgment against the 
 casual ejector. {Doe v. Roe, 8 Dowl. P. C. 306.) So, in one case, 
 after several ineffectual attempts made to serve a tenant in pos- 
 session, on the occasion of the last of which his servant admitted, 
 that he was in the house, but refused to permit the person applying 
 to see him, the declaration being there delivered to the servant, the 
 court of exchequer made an order that such service should be suf- 
 ficient. {Doe V. Roe, 2 Price's K. 112.) But usually service of 
 the declaration and notice in ejectment upon the servant of the 
 tenant in possession will not be sufficient unless it appears that 
 the papers have been received by the tenant. {Doe v. Roe, 2 Mees. 
 
 6 Wels. E. 374. Doe v. Roe, 1 Chitty's E. 100. Doe v. Roe, Ib. 
 213. Doe V. Roe, 1 Moore & Scott's E. 435.) Although, in one 
 instance, where the tenant was not to be found, the court held, 
 that a service upon a servant, upon the premises, who was desired 
 to deliver it to his master, and afterward stated that he had done 
 so, was a good service. {Doe v. Roe, 1 Moore & Scott's E. 597.) 
 
 On a motion for judgment against the casual ejector, where 
 the service of the papers is upon a servant of the tenant in pos- 
 session, the a^davit of service must show an acknowledgment by 
 the tenant, that the declaration and notice came to his liands before 
 the term ; but it need not be shown when the acknowledgment was 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 423 
 
 mado. {Doe v. Roe, 8 Scott's K. 459. Vide also Doe v. Roe, 1 
 jb. 404. Doe v. Roe, 2 Scott's JST. E. 448. Doe v. Roe, 1 Mees. 
 & Wels. E. 633. Z>oe v. Roe, 4 Moore & Scott's E. 165.) 
 
 Upon an affidavit, stating that tlie declaration and notice of 
 ejectment (for an isolated close of land) bad been delivered to a 
 female at the residence of the tenant in possession, and showing 
 circumstances to induce the court to believe that the tenant was 
 avoiding service, a rule nisi for judgment against the casual 
 ejector was granted ; and the court held that the service of the 
 rule upon the same female (who was sworn to be the tenant's 
 servant), in a yard adjoining the dwelling-house, was sufficient to 
 make the rule absolute. (Doe v. Roe, 5 Scott's E. 712. Same 
 Case, 6 Dowl. P. 0. 455.) 
 
 Service of the papers in ejectment upon the agent of the tenant 
 in possession, who is abroad, is sufficient to justify the rule nisi for 
 judgment against the casual ejector; but it should affirmatively 
 appear that the person on whom the service was made was the 
 actual agent of the tenant. {Doe v. Roe, 4 Barn. & Aid. E. 653. 
 Doe v. Roe, 4 Dowl. P. C. 278. Doe v. Roe, 4 Scott's N. E. 706.) 
 But service of the declaration and notice on the agent of a 
 tenant in possession, who is within the kingdom, is not a good 
 service. {Doe v. Roe, "W., W. & D. E. 49. Doe v. Roe, 1 Jur. 
 104. Doe V. Roe, 1 Har. & W. E. 672.) 
 
 The rule nisi for judgment against the casual ejector, will be 
 granted where the declaration and notice are served on the attor- 
 ney of the tenant in possession, provided the attorney acknow- 
 ledges the receipt of the papers for his client. {Anonymous, 2 
 Chitty's E. 181. Anonymous, lb. 187.) But vide Doe v. Roe, 1 
 Dowl. P, C. 613. Doe v. Roe, lb. 669.) But service of the 
 papers on a person appointed by the court of chancery to manage 
 an estate for an infant, lias been held to be insufficient. {Goodtitle 
 V. Badtitle, 1 Broderip & Bingham's E. 385. Vide Jenny v. Cutis, 
 1 Scott's E. 52.) 
 
 "Where the tenant in possession has absconded to another country, 
 service of the papers in ejectment may be effected on the agent of 
 the tenant on the premises ; or, if there is no person to be found 
 on the premises, apparently in charge, the 'declaration and notice 
 may be served by affixing a copy thereof on the outer door of tlie 
 house on the premises, or if there be no dwell ing-honse upon the 
 premises a copy of the papers may be nailed up on tlic barn door 
 
424 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of the premises ; although in such cases it should appear that the 
 tenant had absconded, or resided abroad for the express purpose 
 of avoiding the service of the declaration and notice in ejectment. 
 {Anonymous, 2 Chitty's E. 179. Doe v. Eoo, lb. 178. Anonymous, 
 1 ib. 505, note. Doe v. Boe, 6 Bing. IS". C. 207. Same Case, 8 
 Scott's K. 468. Doe v. Eoe, 7 Ib. 689. Sprightly v. Dunch, 2 Burr. 
 E. 1116. Anonymoics, Lofft's E. 266. Doe v. lioe, 3 Dowl. P. C. 
 577. Doe v. Boe, Ib. 11. -Fenn v. Boe, 4 Bos. & Pul. E. 293. 
 Barrow v. Boe, 1 Scott's K". E. 238. Doe v. Boe, 3 Moore's E. 
 576.) And where it appeared that the tenant in possession had 
 rendered the premises inaccessible, and had evaded personal service 
 of a declaration in ejectment, service by leaving it at the counting- 
 house of the tenant in possession, was held sufficient. {Barrow v. 
 Boe, 1 Man. & G. E. 238.) 
 
 Where the tenant in possession having shut up tlie premises, 
 leaving the key in possession of the assignee of the lease, the 
 court held that service of the declaration in ejectment on such 
 assignee, was a sufficient service. {Doe v. Boe, 6 Jur. 950, B. C.) 
 But when the premises are totally deserted, and there is no one on 
 whom service of tlie papers can be made, judgment cannot be had 
 against the casual ejector, but the proceeding must be as upon 
 a vacant possession. {Doe v. Roe,^ Dowl. P. C. 399, 428. Doe v. 
 Boe, 3 ib. 691. Doe v. Boe, 4 ib. 173. Doe v. Boe, 1 Har. & W. E. 
 367. Doe v. CocJc, 4 Barn. & Ores. E. 259.) But where the house 
 on the premises had been kept locked up for four months, and no 
 one had been seen to enter it or come out of it, and it was im- 
 possible to see whether any goods were left upon the premises, 
 the court granted a rule nisi for judgment against the casual 
 ejector, to be served by being stuck up against the front door. 
 {Doe V. Boe, W., "W. & D. E. 187.) And in ejectment by a mort- 
 gagee where the mortgagor was purposely keeping out of the way 
 to avoid service, and when it was not clear that the premises were 
 legally vacant ; it was held that a service of the declaration in 
 ejectment, by merely sticking it on the premises, was sufficient to 
 have a rule nisi for judgment against the casual ejector. {Doe v. 
 Boe, W., W. & D. E. 72.) 
 
 Service of the declaration and notice on a Sunday, by the lessor, 
 of the plaintiif upon the tenant in possession, is not a good service ; 
 and when the papers were left at the house of the tenant in pos- 
 session on Saturday, and the tenant afterward acknowledged that 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 425 
 
 he received tlietn on the following Sunday, -which was before the 
 essoin day, the court held that tliis was not a good service. {Doe 
 V. Eoe, 5 Barn. & Cres. R. 764. Same Case, 12 Eng. C. L. R. 373.) 
 
 If the personal service of the declaration and notice in ejectment 
 upon the tenant in possession is prevented by fraud or threats of 
 violence, the court will excuse a complete and regular service, and 
 grant a rule nisi for judgment against the casual ejector ; and in 
 some aggravated cases the courts will gi'ant rules absolute in the 
 first instance. But in all such cases it must appear by afiidavit 
 that the acts of fraud or violence were perpetrated, and, in addition, 
 that a cop3' of the papers were left in a conspicuous place on the 
 premises claimed. {Doe v. Roe, 3 Dowl. P. C. 569. Doe v. lioe, 
 1 Har. & W. E. 371. Doe v. lioe, 7 Scott's E. 846.) For example, 
 the service of the papers was considered sufficient for a rule nisi, 
 where it appeared that the person making the service went to tlie 
 premises, but found the door closed, and knocked, but gained no 
 admission ; that he looked through a window, and saw the niece 
 of the tenant in possession ; that he again knocked, but could not 
 get in ; that he then explained, through the door, the nature and 
 object of the service, and posted the declaration against the door; 
 that two conversations afterward took place between the person 
 making such service and the attorney of the tenant, from wliich it 
 was learned that the declaration had been brought to tliat attorney. 
 {Doe V. Roe, 2 Dowl. F. C. 444.) So, where the declaration and 
 notice was presented to the wife of the tenant in possession on the 
 premises, who refused to take the papers, whereupon the same were 
 left on a table, after the proper explanation; and as the person 
 making the service was leaving, the wife threw the papers after 
 him, when he picked them up. and affixed them on the most con- 
 spicuous pari of the premises; the court, on an affidavit proving 
 these facts, granted the rule nisi for judgment against the casual 
 ejector. {Doe v. Roe, 2 Dowl. P. C. 441. Vide Doe v. lioe, lb. 449.) 
 
 Where the service of the declaration was effected by passing the 
 copy of the declaration and notice under the door of the dwelling- 
 house, the tenant in possession being in the house at the time, and 
 refusing to open the door or listen to the explanation given of the 
 object and nature of the service, the court held the service suffi- 
 cient. {Doe Y. Roe, 7 Mees. & Wels. E. 439.) So, where tlie 
 tenants in possession locked themselves up in the premises sought 
 to be recovered, and access could not be had to them, it was held 
 54 
 
426 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 a sufficient service for a rule nisi to put the declaration and notice 
 under the door, witli a full explanation aloud outside. {Doe v. Roe, 
 5 Dowl. P. C. 552. And vide Doe v. Eoe, 4 Jur. 608, B. C.) 
 
 In the absence of personal service on tlie tenant in possession, a 
 letter from his attorney stating that the tenant had placed the 
 declaration in his hands, and proposing to let judgment go by 
 default on certain terms, was held by the court to afford sufficient 
 and reasonable grounds for presuming the declaration to have duly 
 reached the tenant. {Doe v. Roe, 3 Scott's K. E. 363. Same Case, 
 3 Man. & Gr. R. 87.) And an acknowledgment of the service of 
 a declaration in ejectment, received by the attorney for tlie lessor 
 of the plaintiff before the term, in a letter from the attorney of the 
 tenant in possession, has also been held sufficient to grant a rule 
 for judgment. {Doe v. Roe, 1 W., W. & H. E. 207.) 
 
 An acknowledgment by tlie tenant in possession, on the first day 
 of term, that the declaration which had been served on a servant 
 of the te'nant upon the premises had come to his hands before the 
 term, is sufficient, on a motion for judgment against the casual 
 ejector. {Doe v. Roe, 2 Man. & Gr. E. 244. /Same Case, 2 Scott's 
 . ]^. E. 448.) So, service of a declaration in ejectment having been 
 effected in the usual manner on the son of the tenant in possession 
 on tiie premises, and the tenant afterward, on being informed what 
 'had been done, said, '• that he had no time to lose," the court held 
 sufficient for a rule nisi for judgment against the casual ejector. 
 {Doe V. Roe, 1 Dowl. N. S. 270. And vide Doe v. Roe, 6 Jur. 
 1016, B. C.) 
 
 Where lodgers in a house cannot be served, service on the keeper 
 of the house at the house is sufficient for a rule nisi for judgment 
 against the casual ejector. {Doe v. Roe, 1 Dowl. N". S. 261, B. C. 
 Vide Doe v. Roe, 3 Hodges' E. 239. Doe v. Roe, 2 Har. & W. E. 
 121. Doe V. Roe, 5 Jur. 1134, B. C.) 
 
 In one case, service of a declaration in ejectment, before the 
 essoin day of the term, on the daughter of the tenant in the pos- 
 session, in the absence of the tenant and his wife, was held by the 
 court of king's bench to be good, provided it appeared by the 
 acknowledgment of the wife that the daughter delivered it to her, 
 though it was held that it should appear that such delivery was 
 before the essoin day. {Smith v. Hurst, 1 II. Black. E. 644. And 
 vide Goodtitle v. Thrustout, Barnes! E. 183.) But a few years 
 afterward the same court held that the mere acknowledgment of 
 
SERVICE OF TEE DECLABATION IN EJECTMENT. , 427 
 
 the wife of the tenant in possession, that she has received a decla- 
 ration in ejectment, will not bind her husband. Eyre, Ch. J., said : 
 " If a declaration be served on the wife of the tenant in possession, 
 and she neglects to deliver it to her husband, he must answer for 
 her default. But it would be going further than Ave have ever 
 yet gone to admit the mere acknowledgment of the wife to bind 
 the husband." The motion for judgment against the casual ejector 
 was denied. {Goodtitle v. Badtitle, 1 Bos. & Pull. R. 384.) 
 
 The declaration and notice in ejectment must be served on some 
 day before the first day of the term at which the tenant in posses- 
 sion is required to appear, and when thus served the plaintifi' is 
 entitled to judgment against the casual ejecto*, in the same man- 
 ner as upon declaration served before the essoin or first general 
 return day. {Doe v. Roe, 2 Barn. & Adolph. R. 789. Doe v. lice, 
 7 Bing. R. 784. Doe v. Eoe, 4 Carr. & Pa. R. 604.) This is now 
 the rule, though formerly the service was required to be made 
 before the essoin day of the term ; and where the service was 
 before that day, and the explanation of it to the tenant in posses- 
 sion did not occur till after, the plaintiff was not entitled to judg- 
 ment. {Doe V. Hoe, 1 Dowl. & Ryl. R. 563. Doe v. Eoe, 2 Chitty's 
 R. 180. Doe V. lioe, 4 Moore's R. 20. Roe v. Doe, 14 East's R. 
 441. Doe V. Boe, 1 Har. & "W. R. 46.) JSTow, on motion for judg- 
 ment against the casual ejector, if service of the declaration is to 
 be proved by the tenant's acknowledgment made in term, it must 
 appear by such acknowledgment that the service was before terra. 
 {Doe V. Roe, 2 Adolph. & Ell. R. 588. Same Case, 4 Kev. & Man. 
 R. 553.) 
 
 "Where the declaration was tendered on the day before the first 
 day of term, but the defendant's servant said he had orders not to 
 receive any such thing, whereupon it was not then served, but was 
 left at the house upon the day following, the court refused the 
 rule for judgment against the casual ejector, saying : " "We some- 
 times make that service, under particular circumstances, good, 
 which otherwise would have been imperfect ; but here there was 
 no service on the proper day, and we cannot antedate the service." 
 ("Woodf. ^and. & Ten. 466.) 
 
 Although the court will sometimes make that a good service, 
 under particular circumstances, which otherwise would be imper- 
 fect ; yet, where the service has been after the proper day, they 
 will not allow it to be antedated. {Anonymous, "Woodf. Land. & 
 
428 LAW OF JBJECTMENT AND ADVERSE ENJOYMENT. 
 
 Ten. 386.) But on the trial it is no ground of nonsuit, on a 
 defense, tliat the declaration in ejectment was irregularly served. 
 {Doe V. Brindley, 1 'Eev. & Man. E. 1. Same Case, 4 Barn. & 
 Adolph. K. 84.) 
 
 Where the service of the declaration and notice in ejectment is 
 good for part, and bad for part, the lessor may recover those prem- 
 ises for which the service is good; but if he proceed for all, and 
 obtain possession by means of a judgment against the casual 
 ejector, the court will compel him to make restitution of that part 
 for which the service was bad. (Woodf. Land. & Ten. 463.) And 
 where a rule nisi for judgment against the casual ejector is served 
 on persons who appear and show they are not in possession, and 
 have no claim on the premises, they are entitled to the costs of 
 being brought before the court. {Doe v. Hoe, 1 Man. & Gr. 31. 490.) 
 
 "Where the premises are vacant, the claimant must resort to the 
 ancient practice which is explained in a preVious chapter. ( Yide 
 ante, cli. 19.) 
 
 Tlie notice at the foot of the declaration in ejectment must be 
 read and explained to the tenant in possession, or other person 
 with whom the papers are left ; and it is not sufficient to read the 
 notice merely, unless the tenant subsequently acknowledges that 
 lie understood the meaning and intention of the service. But 
 with such acknowledgment the service is good without any proof 
 that the papers were read and explained. And if the tenant in 
 possession reads over tlie notice himself, and says he understands 
 the nature and object of a declaration in ejectment, it is not neces- 
 sary for the person serving it to read it over or explain it. But 
 ordinarily, in effecting the service of the declaration in ejectment, 
 the notice must bs read over afld explained to the tenant in pos- 
 session, though from his rank in life it is probable that he will 
 understand the object of the service. {Doe v. Roe, 2 Chitty's R. 
 186. Anonymous, lb. 185. Doe v. Roe, 3 Hodges' E. 210. Doe 
 V. Roe, lb. 14. Doe v. Eoe, 5 Jur. 486, B. C. Doe v. Roe, 1 Dowl. 
 P. C. 428. Doe V. Eoe, lb. 518. Doe v. Roe, 1 W., W. & H. 
 E. 584.) 
 
 Where a printed declaration and notice in ejectment were served 
 upon an illiterate tenant, who was told merely that they were a 
 declaration in ejectment, without any further explanation, but it 
 appeared from circumstances that he must have known the nature 
 of the papers, the court considered this equivalent to a technical 
 
SERVICE OF THE DECLARATION IN EJECTMENT. 429 
 
 service. {JacTcson v. Stiles, 1 Cow. E. 222.) And, in one case, it 
 was held, that it will suffice to read over tlie papers to the tenant 
 in possession without explaining them, or to explain them without 
 reading them over. {Doe v. Roe, 1 Dowl. P. 0. 428.) But the 
 court must be satisfied that the tenant understood the nature and 
 object of the papers, or might have so understood the same when 
 the service was made, unless it appear that the tenant fails to get 
 the proper explanation and understanding from some fault of his 
 own, as his refusal to hear the explanation, and the like. {Anony- 
 mous, 2 Chitty's R. 185. Doe v. Roe, 6 Dowl. P. C. 51. Same 
 Case, 1 W., W. & II. R. 206.) 
 
 If a tenant in possession is a foreigner, not understanding the 
 English language, the object of the declaration and notice in 
 ejectment may be explained through the medium of an inter- 
 preter ; and the interpreter employed to make the explanation 
 need not be sworn, and his explanation is sufficient to entitle the 
 lessor of the plaintiff to sign judgment, though not made under 
 oath. {Doe v. Roe, 9 Dowl. P. C. 1023. DoeY. Roe, 3 ib. 335.) 
 
 Under the English statute, every tenant upon whom any declara- 
 tion in ejectment is delivered, is required forthwith to give notice 
 thereof to his landlord, under penalty of forfeiting the value of 
 three years' improved or rack-rent of the premises demised or 
 holden, to the person of whom he holds, to be recovered by action 
 of debt. (11 Geo. II. ch. 19, § 12.) Similar statutes exist in 
 several of the American States, which have been noticed in pre- 
 vious chapters. ( Yide chapters 15, 16, 17, 18.) The improved or 
 rack-rent refei-red to in the English statute is not the rent 
 reserved, but such a rent as the landlord and tenant might fairly 
 agree upon at the time of delivering the declaration in ejectment, 
 in case the premises were then to be let. Sometimes the tenant, 
 by fraudulently concealing the service of the declaration and 
 notice in ejectment from his landlord, and allowing judgment to 
 be taken for more land than the declaration covered, may subject 
 himself to the action for this three years' improved rent for the 
 dferaised premises, and for example certain services in addition. 
 {Crocker v. Fothergill, 2 Barn. & Aid. R. 652.) 
 
 In some instances a regular judgment in ejectment will be set 
 aside on terms, where the tenant has neglected to give the land- 
 lord notice of the service of the declaration and notice; although 
 occasionally the courts have allowed such judgments to stand, 
 
4:30 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ■where they were entered up without any collusion with the tenant. 
 {Doe V. Jioe, 1 Hodges' E. 223. Doe v. Eoe, 2 Scott's K. 181. 
 Doe V. Eoe, 11 Price's R. 507. Doe v.. Boe, 4 Burr. E. 1996. 
 Ooodtitle V. Badtitle, 4 Taunt. E. 820. Doe v. lioe, 2 Cr. & Jer. 
 E. 682. Doe v. Hoe, 2 Har. & W. E. 130.) 
 
 It is held, however, that under the English statute, a tenant to 
 a mortgagor, who does not give his notice of an ejectment brought 
 by the mortgagee to enforce an attornment, is not liable for the 
 penalties given by the act. {Buckley v. Buchley, 1 Term E. 
 647.) 
 
 This whole subject of serving the declaration and notice in 
 ejectment is often regulated by statute in the American states, 
 and where this is so, the provisions of the statute will be given in 
 subsequent chapters. 
 
 CPIAPTER XXIII. 
 
 OF THE AFFIDAVIT OF SEEVICE OF THE DECLAEATION AND NOTICE ESI 
 EJECTMENT — THE JUDGMENT AGAINST THE CASUAL EJEGTOE, BY 
 DEFAULT — OPENING THE DEFAULT, AND ALLOWING THE TENANT 
 TO DEFEND. 
 
 After the service of the declaration and notice in ejectment 
 has been effected, the next step to be taken, in order to obtain 
 judgment against the casual ejector, is to make an affidavit of such 
 service, which must be annexed to the declaration, and is the 
 ground upon which the rule for judgment is to be moved" for. 
 However, where the service is in the regulai* way upon the tenant 
 in possession personally, by an officer of the court, the return of 
 the officer will be sufficient, without any affidavit. The return of 
 the officer is sometimes made the proper evidence of such service, 
 by statute. {CampheWs Lessee v. Harper, 3 Wash. C. C. E. 456. 
 Gratz V. Benner, 13 Serg. & Eawle's E. 110.) 
 
 Where the service of the declaration and notice in ejectment is 
 on the tenant in possession in the ordinary and regular way, the 
 proof of service is presented to the clerk of the court, and the rule 
 for judgment against the casual ejector is entered as a matter of 
 course. But when the service is not in the regular way, the motion 
 for judgment must be made in open court, where all the special 
 
PROOF OF SERVICE OF PROCESS IN EJECTMENT. 431 
 
 circnmstaiices relating to the service must be made to aj^pear by 
 affidavit. And it is decided that -when any special circumstances 
 exist, the motive for the rule may be made, either before or after 
 the service of the declaration ; although if the lessor be aware of 
 the obstacles he will have to encounter, it is recommended that 
 the notice be made prior to the service, for a rule to show 
 cause why a service of such a nature as shall be stated in the 
 affidavit should not be sufficient. {Doe v. Eoe, 5 Dowl. P. C. 271. 
 Methold \. Noright^BW. E.-290. GulUon v. Wagstaff, lb. 317.) 
 The affidavit of service of the declaration and notice should not 
 be entitled in the real names of the defendants, but in the name 
 of the casual ejector. {Anonymous, 2 Chittty's E. 181.) The 
 lessor of the plaintiff should be properly stated, in the title of the 
 affidavit; although if the lessors of the plaintiif are described to 
 be executors, the affidavit of service need not in stating the name 
 of the cause, notice the character of the lessors stated in the 
 declaration. {Doe v. Boe, 2 Dowl. P. C. 55. Same Case, 3 Tyr. 
 E. 602.) If, however, the character of the lessors of the plaintiff 
 is stated^ in the entitling of the affidavit of service of the declara- 
 tion and notice, although by mistake, it seems to be bad, and tlie 
 affidavit cannot be used, though it refers to a rule annexed, which 
 has a.correct title. {Doe v. Hoe, 5 Jurist, 508, E. C.) 
 
 An affidavit of the service of the declaration and notice entitled 
 " Doe on the several demises of A B, C D, E F and G H," where 
 some of the demises were joint and others several, has been held 
 to be sufficient. {Doe v. Eoe, 5 Dowl. P. G. 447. Same Case, 
 Mur. & H. E. 3.) And where the declaration was on two several 
 demises, and in the title of the affidavit of service the names of 
 the lessors of the plaintiff were mentioned jointly, without speci- 
 fying which of them were parties to gach demise, the court held, 
 that the title to the affidavit was sufficient. {Doe v. Roe, 1 Jur. 
 844.) And an affidavit entitled ''Doe on the demise," instead of 
 " demises," is sufficient ; although it seems that an affidavit of 
 service of a declaration in ejectment, where the declaration is on 
 several demises, is wrongly entitled " Doe, on the demise of G, v. 
 Eoe," without mentioning the names of the other lessors of the 
 plaintiff. {Doe v. Eoe, W., "W. & D. E. 75. Same Case, 1 Jur. 
 166. Doe v. Eoe, 4 Mees. & Wei?. E. 68. Same Case, 7 Dowl. 
 P. 0. 53. Same Case, 1 Horn & H". E. 191. Same Case, 2 Jur. 
 470.) And an affidavit of service of the declaration and notice 
 
432 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 entitled Doe v. Hoe, omitting entirely the name of the lessor of 
 the plaintiff, is bad. {Doe v. Johnson, 1 Jur. 166.) 
 
 The affidavit of the service of the declaration and notice should 
 regularly be made by the person who made the service ; although 
 the affidavit may be made by a person who saw the declaration and 
 notice served, and heard the same explained to the tenant in posses- 
 sion. (Goodtitle v. Dadtitle, 2 Eos. & Tull. E. 120.) So also the 
 court will grant a rule nisi for judgment against the casual ejector, 
 where the affidavit is jointly made by the person who served the 
 declaration and tlie housekeeper of the tenant in possession ; the 
 former stating a service on the latter with the proper explanation, 
 and the latter stating that she liad delivered the declaration and 
 notice to her master. {Doe v. Hoe, 2 Dowling P. C. 198.) In 
 an ejectmeut on a vacant possession, tlie affidavit that six months' 
 rent is in arrear may be made by a receiver. {Anony7nous, 3 Moore 
 & Scott's K. 741.) 
 
 The affidavit of service of a declaration and notice in ejectment 
 must be sworn to before a judge of the court in which tlie action 
 is pending, a commissioner, or other officer authorized to take 
 affidavits to be read in courts of record ; and althougli the rule is 
 different in this country, it has been held in England, that the 
 affidavit of service may be sworn to before the attorney in the 
 cause. {Doe v. Roe, 2 Young & Jervis' H; 284.) 
 
 It should appear clearly, from the affidavit, that the person who 
 was the object of tlie service was the tenant in possession of the 
 premises claimed. {Anonymous, 1 Price's E. 349.) And the 
 affidavit must state that the party served is tenant in possession. 
 {Doe v.'Jioe, 1 Har. & "VV. E. 3G7.) Although in one case it was 
 held to be sufficient, if the affidavit impliedly shows that the 
 defendant was the tenant in, possession at the time the declaration 
 was served on his wife. {Anonymoiis, 1 Chitty's E. 500.) But it 
 is very much safer, if not positively requisite, for the affidavit of 
 service of the declaration and notice in ejectment to state positively 
 and not inferentially the service to have been effected on the tenant 
 in possession ; and it has been held, that it is not sufficient to 
 entitle a party to judgment against the casual ejector, to swear 
 to service on the tenant in possession by serving on H. H., who 
 was on the premises. {Doe v. Hitchcock, 2 Dowl. IST. S. 1. Same 
 Case, 9 Jur. 916, B. C.) So also it has been held, that, in order 
 to obtain judgment against the casual ejector, it is necessary that 
 
PROOF OF SERVICE OF PROCESS Ik EJECTMENT. 433 
 
 a service should be shown on the " tenant in possession ;" a service 
 on the last person in possession is insufficient, although there may 
 be a difficulty in ascertaining who is the tenant in possession. 
 {Doe V. Roe, 5 Dowl. P. 0. 720. Same Case, W., W. & D. K. 
 392.) And an affidavit of service upon the person in possession, 
 or upon the " occupier " of the premises claimed, is insufficient. 
 {Doe V. Roe, 5 Dowl. P. C. 609. Doe v. Roe, lb. 714.) Neither 
 will it answer to swear to service on a person who appears, from 
 facts stated in the affidavit, to be in point of law the tenant in 
 possession ; but it is necessary that the affidavit should show in 
 terms that the service was on the tenant in possession. {Doe v. 
 Roe, 5 Dowl. P. 0. 226. Wharton v. Clay, 4 Bibb's K. 167.) And 
 where there are several tenants in possession, the affidavit of service 
 in ejectment should state that each was served ; and an affidavit 
 stating that the deponent "personally served J. T., W. E., J. E. 
 and C. T., the four tenants in possession, with true copies of the 
 declaration," is not sufficient ; but each should be sworn to hare 
 been personally served. {Doe v. Roe, 1 Dowl. P. C. 102. Doe v. 
 Roe, 1 Arn. E. 373. But vide Doe v. Roe, W., W. & D. R. 220.) 
 
 Where the return of the marshal of the service of a declaration 
 in ejectment stated that such marshal had shown the declaration 
 to one defendent, and delivered a copy of it at the dwelling-house 
 of the other in the presence of his wife, the court held the return 
 insufficient, as a copy should have been left at the dwelling-houses 
 of both defendants, and the notice should have been read or 
 explained by the marshal, and the return should have stated that 
 the defendants were tenants in possession. If, however, all the 
 defendants in ejectment inhabit the same house, and this appears 
 by the marshal's return, it is sufficient to deliver one copy. {Camp- 
 lelVs Lessee v. Harper, 3 Wash. C. C. K. 356.) 
 
 Whether the tenant is in possession, is not a question upon the 
 merits, but merely of irregulai'ity, and it seems that affidavits may 
 be heard upon the question on both sides. But it must appear, 
 by affidavit, that the declaration and notice were served upon the 
 tenant in possession, before a default can be taken against the 
 casual ejector. {Jackson v. Siiles, 1 Cow. E. 222.) 
 
 If the service of the declaration and notice in ejectment is 
 
 acknowledged by indorsement on the same, the signature of the 
 
 tenant in possession must be proved. {Freeman v. Oldham^s 
 
 Lessee, 4 Monroe's E. 420.) But it seems that in Mississippi the 
 
 55 
 
434 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 affidavit of the service of the declaration and notice in ejectment 
 is not required. This must be on account of a statutory provision, 
 which may be referred to hereafter. ( Williams v. Oppelt, 1 Smedes 
 & Marshall's E. 559.) On the contrary, in the state of New Jersey 
 the practice is quite as strict as it is in England, in this respect. 
 Where, in an action of ejectment against a corporation, the affida- 
 vit of the ser-vice of the declaration stated that a copy was " served 
 upon A B, said to be one of the directors of the within named 
 company," and the court held the same to be insufficient. {Den 
 V. Fen. V. The President, etc., of the Bridgewater Mining Company, 
 Tenants, 5 Halst. E. 237. Same Case, 7 ib. 321.) 
 
 An affidavit that the deponent served A B, the tenant in pos- 
 session, or Ms vnfe, is not sufficiently certain as to either. {Bir- 
 leck V. Hughes, Barn. E. 173.) And affidavits that the deponent 
 did serve the wives of A and B, who, or one of them, are tenants 
 in possession, have been held insufficient. {Sarding v. Green- 
 smith, Barn. E. 174.) 
 
 So an affidavit, which states that the declaration was served on 
 the daughter of the tenant in possession, but does not show that 
 such service was made on the premises in question, is insufficient. 
 {Ben V. Fen, 7 Halst. E. 321.) 
 
 The affidavit of the service of the declaration and notice in eject- 
 ment must state, in addition to the facts hereinbefore referred to, 
 that the notice annexed to the declaration was read and explained 
 at the time of the service, to the tenant in possession, or generally 
 that the tenant was informed of the intent and meaning of the 
 papers served, or satisfactory reasons given why such reading and 
 explanation did not occur. The authorities hereinbefore cited to 
 show the necessity of reading and explaining the notice annexed 
 to the declaration in ejectment to the tenant at the time of service, 
 also show that the fact of such reading and explanation is required 
 to be stated in the affidavit of service, and the citation of these 
 authorities need not be repeated here. ( Vide also Den v. Fen, 
 5 Halst. E. 237.) 
 
 By the present rules of the English courts, no judgment in eject- 
 ment, for want of appearance or defense, whether limited or other- 
 wise, can be signed, without first filing an affidavit of the service 
 of the writ according to the comnion law procedure act of 1852, 
 and a copy thereof; and under this provision it has been doubted, 
 whether the affidavit of service of the writ of ejectment should 
 
PROOF OF SERVICE OF PROCESS JJV EJECTMENT. 435 
 
 sliow, as under the old practice, that the nature and object of the 
 service was explained to the party served. It seems, at all events, 
 an irregularity in that respect is waived by a subsequent attorn- 
 ment. {Edwards v. Griffith, 6 J. Scott's E. 397. Same Case, 
 80 Eng. C. L. E. 397.) 
 
 If several persons be in possession of the disputed premises, and 
 separate declarations in ejectment be served upon them, one affida- 
 vit of service upon all, annexed to the copy of one declaration, is 
 sufficient ; provided one action of ejectment only be intended ; but 
 if the ejectments are made several, so as' to have separate judg- 
 ments, and separate writs of possession, of course, tlien separate 
 affidavits of the several services upon the different tenants must 
 be annexed to copies of the several declarations respectively. 
 (Adams on Ejectment, 246.) 
 
 "Where an action of ejectment has been brought against several 
 tenants, on a motion for judgment against the casual ejector, the 
 names of all the tenants should be introduced into the copy of tlie 
 declaration and notice which are attached to the affidavit of service. 
 If the notice so attached contains no name, and the affidavit states 
 that the name of each was inserted in the copy served on him, 
 even then the affidavit is insufficient. {Doe v. Hoe, 8 Dowl. P. 0. 
 500'. Same Case, 4 Jur. 990, B. C.) 
 
 The affidavit of service of the declaration and notice in ejectment 
 must state the year, as well as the month, and day of the month, 
 in which the service was made ; and an affidavit in which the year 
 in which the service was made is omitted, is defective. For example, 
 where the affidavit of the service of the declaration and notice in 
 ejectment was sworn to on the 8th of June, 1840, and stated the 
 service to have been made on the 26th of May, without saying 
 " last," or mentioning any year, the court held that the affidavit 
 must be amended. {Doe v. Hoe, 8 Dowl. P. C. 784. 4 Jur. 748, 
 Exch.) But where the affidavit and service of the declaration and 
 notice in ejectment appears to be defective, a party who has been 
 served cannot take advantage of the defect before judgment is 
 quashed. {Gabbot v. Ejector, 1 Alcock & Napier's [Irish] E. 184.) 
 
 A memorandum, on the back of a declaration in ejectment, 
 stating that the same was served on the tenant in possession four 
 years back, in the handwriting of a person who had since left the 
 country, was held by the court to be insufficient to allow judgment 
 to be entered up against the casual ejector. {Doe v. Roe, 1 Har. 
 
436 LAW OF EJECTMENT AKD ADVERSE ENJOYMENT. 
 
 & "W. E. 218.) And the court will not allow a rule for judgment 
 against the casual ejector to be drawn up on the last day of the 
 term, upon an affidavit to be made and filed on a subsequent day. 
 (Boe V. Roe, 2 Scott's IST. E. 584.) Neither will the court, where 
 an affidavit of service is defective, grant a rule for judgment upon 
 an undertaking that a supplemental affidavit shall be made remedy- 
 ing the defect; but upon obtaining such supplemental affidavit the 
 rule may be moved for as in ordinary cases. {Jenny v. Cutis, 
 1 K E. 308.) 
 
 It is not indispensably necessary that the word " served," appear 
 in the affidavit of service of a declaration in ejectment, provided 
 it fully appears from the affidavit that it has been duly served. 
 {Doe V. Hoe, 5 Dowl. P. G. 155.) And the affidavit on which the 
 judgment against the casual ejector is moved, need not distinguish 
 how the demises are stated in the declaration, so long as all the 
 names of the lessors are inserted. {Doe v. Boe, "W., W. & D. 
 E. 607.) 
 
 II. The next step to be taken in the cause by the lessor of the 
 plaintiff, after the affidavit of service of the declaration and notice 
 in ejectment is prepared, is to move for judgment against the 
 casual ejector ; that is to say, the plaintiff will be at liberty to 
 sign judgment by default, unless the party interested shall appear 
 to the action, and plead to issue within the time limited in the 
 rule. As has been before observed, the motion for the rule for 
 judgment is a motion of course, unless there is something special 
 in the service of the declaration, and may be taken at once to the 
 clerk of the court in which the action is pending and the rule will 
 then be drawn up and entered. Eut if there is any thing special 
 in the service of the declaration and notice, then the motion for 
 the rule must be made to the court. 
 
 "With respect to the time for the motion for judgment against 
 the casual ejector, the late English practice permits the motion to 
 be made against a defendant in London and Middlesex, on any 
 day during the term in which the tenant is directed by the notice 
 to appear ; and it was not too late to move for the judgment 
 against the casual ejector, in the term following that in which the 
 tenants were required to appear by the notice at the foot of the 
 declaration. {Doe v. Hoe, 9 Meeson & "Welsby's E. 426. Same 
 Case, 1 Dowl. IS". S. 613. Same Case, 6 Jur. 263.) And it seems 
 that the judgment may be moved for in town cases, that is to say 
 
MOTION FOR JUDGMENT IN EJECTMENT. 437 
 
 ■where the premises are situated in London or Middlesex, after the 
 lapse of a term, without a fresh notice, when on account of negotia- 
 tions between the parties, the' term in which the tenant is called 
 on to appear is allowed to pass over without such notice being 
 made. {Doe v. Roe, 1 Dowl. N. S. 777. Same Case, 6 Jur. 806, 
 
 B. C.) Indeed, it has been held that if a regular service is eifected 
 before the term of the court in which the appearance is to be 
 made, and which elapses, a motion for judgment may be made in 
 the following term on the same service. {Doe v. Roe, 2 Dowl. P. 
 
 C. 196. Doe Y.~Roe, 3 ib. 575.) But if one term is allowed to 
 elapse in a town cause between the service of the declaration in 
 ejectment and the notice for judgment against the casual ejector, 
 the notice to appear being in the former town, a rule nisi only for 
 judgment will be allowed. Doe v. Roe, 4 Gale's E. 15. Doe v. 
 Roe, 4 Dowl. P. C. 124. Doe v. Roe, 8 Scott's R. 471. Doe v. 
 Roe, 3 Hodge's R. 13.) And if two terms elapse after the service 
 of the declaration and notice on the tenant, the court will not 
 grant the rule for judgment against the casual ejector on that 
 service. {Doe v. Roe, 1 Dowl. P. C. 495.) "Where a notice at the 
 foot of the declaration in ejectment required an appearance in 
 Michaelmas term, but service could not be eifected in time to move 
 in that term, the court in Hiliary term granted a rule for judg- 
 ment against the casual ejector, unless cause was shown before the 
 last day but one of that term. {Doe v. Roe, 9 Dowl. P. C. 714.) 
 
 In all country ejectments — that is to say, in all cases of eject- 
 ment for the recovery of premises situated elsewhere than 
 in London or Middlesex — the time for the appearance of 
 the tenant in possession was required by the late practice, 
 to be within four days after the end of the term, in which 
 the tenant was required to appear by the notice, and the 
 rule for judgment might be moved for by the plaintiff in the next 
 term after that in which the tenant in possession was required to 
 appear. {Doe v. Roe, 4 Bing. IST. C. 675. Same Case, 6 Scott's 
 R. 433. Doe v. Roe, 5 Dowl. P. C. 662. Same Case, W., W. & 
 
 D. R. 391. Doe v. Roe, 1 Jur. 497.) And the judgment might 
 be obtained without a rule nisi in the first instance. {Doe v. Roe, 
 6 Dowl. P. C. 270. Same Case, 1 W., W. & H. R.,85.) 
 
 In the American states, the affidavit of the service of the declara- 
 tion and notice in ejectment on the tenant in possession may be filed 
 with the clerk of the court, and a rule entered requiring the tenant 
 
438 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to appear on some day during the term of the court to which the 
 declaration is returned, and if such appearance is not entered 
 according to the terms of the rule, the plaintiff may sign judgment 
 by default against the casual ejector ; although the judgment will 
 be vacated if the tenant enters his appearance afterward, and dur- 
 ing the same term, if it should continue beyond the period stated 
 in the rule. {OampbelVs Lessee v. Harper, 3 Wash. C. C. E. 356. 
 And vide Jackson v. SmMh, 1 Johns. E. 106. Gardiner v. Mur- 
 raifs Lessee, 4 Yeates' E. 560.) Where the notice at the foot of a 
 declaration in ejectment is addressed to all the tenants in posses- 
 sion of distinct parts of the premises, and each tenant is served 
 with a copy addressed to all, there should be only one rule for 
 judgment. At all events in ejectment against several tenants, 
 where the name of each is prefixed to the notice served, only one 
 rule is necessary on a motion for judgment against the casual 
 ejector. {Doe v. Roe, 2 Dowl. IS". S. 52. Same Case, 6 Jur. 931, 
 B. C. Doe V. Roe, 7 Term E. 477. Doe v. Eoe, 2 Tyr. E. 724. 
 Same Case, 2 C. & J. E. 670.) 
 
 But a rule for judgment against the casual ejector, where there 
 are two lessors of the plaintiff, should be entitled in the names of 
 both. {Doe v. Eoe, 7 Scott's E. 172.) And where four out of five 
 parish officers were served in ejectment, the rule for judgment 
 against the casual ejector can only be taken as to the premises in 
 the possession of the four. {Doe v. Roe, 2 Har. & W. E. 335.) 
 
 A rule was made absolute for judgment against the casual ejector, 
 where a rule nisi was served on the servant of the tenant on the 
 premises, which were locked up, and nobody was there except the 
 servant, who had the keys, the declaration having been served on 
 the servant under nearly the same circumstances. {Doe v. Roe, 
 2 Chitty's E. 184.) But in ejectment on a forfeiture, an affidavit 
 was made that the defendant was a pauper, that his residence .was 
 unknown, and that one Flight was the real defendant, and that he 
 received the rent. Flight denied that he was the landlord and 
 owner, and asserted that he received the rent for the defendant. 
 The court discharged a rule calling on Flight to state the residence 
 of the defendant, or show cause why the lessor of the plaintiff 
 should not be at liberty to sign judgment against the casual ejector. 
 {Doe V. Roe, 1 Jur. 199.) 
 
 The plaintiff, in an ejectment on a vacant possession, should pro- 
 ceed more regularly than in a contested possession ; and if, in such 
 
MOTION FOR JUDGMENT IN EJECTMENT. 439 
 
 «i case, having obtained judgment, he should neglect to take away 
 the rule before the expiration of two days after the term in which ' 
 the rule was obtained, the court will not assist him in the next 
 term. {Anonymous, 2 Chitty's E. 188.) And it may be stated 
 that the English common law practice requires that the rule for 
 judgment against the casual ejector shall be drawn up, and taken 
 away from the office of the clerk of the rules, within two days after 
 the end of the term in which the rule has been obtained, or no 
 further proceedings can be had in the action. (Adams on Eject. 249.) 
 The rule for judgment against the casual ejector cannot be drawn 
 up conditionally. It must be absolute and unequivocal in its terms, 
 and take effect when entered. {Anonymous, 2 Chitty's R. 499.) 
 
 By the English common law practice, the clerk of the rules, both 
 in the court of queen's bench and common pleas, was required to 
 keep a book, in which should be entered all the rules which from 
 time to time were to be delivered out in ejectments ; in which must 
 be mentioned the number of the entry, the county in which the 
 premises lay, the names of the nominal plaintiff, the first lessor of 
 the plaintiff (with the words " and others " if there were more than 
 one), and also the name of the casual ejector ; and, unless the rule 
 for judgment was drawn up, and taken away from the office of the 
 clerk of the rules within two days after the end of the term in 
 which the ejectment was served, no rule could be drawn up or 
 entered in the book, nor could any proceedings be had in such 
 ejectment. (Regular Rules of K. B., 4 Tenn R. 1. Regular 
 Rules, 0. P., 1 Taunt. R. 317.) 
 
 In the American states, where the old forms of proceeding in 
 ejectment cases are observed, the practice is to file proof of due 
 service of the declaration and notice on the tenant in possession in 
 the office of the clerk of the court in which the action is brought 
 during the term of the court at which the defendant is required to 
 appear, and on the day in term indicated by the notice at the foot 
 of the declaration; and thereupon a rule iS' entered, on motion of 
 the plaintiff's attorney, in the common rule book kept by the clerk, 
 requiring the defendant to appear and enter into ^the consent rule 
 in twenty days thereafter, or judgment will be entered against the 
 casual ejector by default. If the rule is not complied with, the 
 default of the casual ejector is entered, and then the plaintiff may 
 at any time after four days in term shall have elapsed, after the 
 entry of the default, enter a rule in the common rule book k^pt by 
 
440 LAW OF EJECTMENT AND ADVERSE ENJOYNENT. 
 
 the clerk, for judgment absolute in favor of the plaintiff for the 
 premises claimed. ( Vide Truer v. JBowman, 3 Penn. Ti. 70.) 
 
 In case the declaration and notice in ejectment are not served on 
 the tenant in possession personally, the motion for the rule requir- 
 ing the defendant to appear in the action must be made to the 
 court, as well in the United States as in England ; and if the rule 
 is granted, then the practice subsequently is the same as when the 
 papers were personally served, unless the court, for good cause, 
 order differently. But the practice in these cases in the United 
 States is at present regulated by statute, as a general thing, and 
 these statutory provisions will be explained hereafter. 
 
 As before suggested, the default of the tenant in possession for 
 not appearing must be entered before the judgment by default can 
 be entered against the casual ejector ; but it has been held, that 
 inserting the word "judgment " in the entry of the tenant's default 
 for not appearing, etc., in such case, will not alter the legal effect 
 of the entry ; but it will, notwithstanding, be good ; and the word 
 " judgment " may be rejected as surplusage. So also the judgment 
 in such case must be against the casual ejector ; but, if the rule 
 for judgment generally should omit the words " against the casual 
 ejector," the rule is held to be good for judgment against the 
 casual ejector. {Jackson v. Stiles, 6 Cow. E. 418.) 
 
 A motion for judgment against the casual ejector will not be 
 entertained where the proceedings in the cause are stayed by an 
 injunction. {Doe v. Hoe, 2 Scott's N. K. 548.) But the court will 
 grant a rule for judgment against the casual ejector after the appear- 
 ance of the tenant in possession. {Doe v. Hoe, 3 Jur. 460, C. P.) 
 
 Where the tenants, having undertaken to appear, enter into the 
 common consent rule, plead instanter, and take short notice of 
 trial, made no defense at the trial, but sued out a writ of error 
 when judgment was signed, the court of common pleas of England 
 allowed the lessor of the plaintiff to take his judgment against the 
 casual ejector. {Doe v. Hoe, 3 Bing. E. 169. Same Case, sub nam. 
 Doe v. Frisley, 10 Moore's R. 574.) And where a person obtains 
 a rule to defend as landlord, the plaintiff nevertheless may sign 
 judgment against the casual ejector, but may not take out execu- 
 tion without further order. {Doe v. Bennet, 4 Barn. & Ores. E. 
 897. Same Case, 7 Dowl. & Eyl. E. 61.) 
 
 Judgments against the casual ejector irregularly obtained will, 
 pf course, be set aside, provided the application be made within a 
 
THE APPEARANCE IN EJECTMENT. 441 
 
 reasonable time after the judgment was entered ; and, where the 
 defendant has merits, the courts are very liberal in setting aside a 
 regular default, upon just and equitable terras, to let in the tenant 
 to defend his possession. If the judgment has been regularly 
 signed, the application to open the default on the merits must be 
 made to the court at the earliest practicable period after the judg- 
 ment was obtained, and then, if it appears to the court that the 
 ends of justice require it, the judgment will be set aside on terms 
 that will indemnify the plaintiff, and the defendant will be allowed 
 to defend. ( Vide Jackson v. Stiles, 4 Johns. E. 489. {Jackson v. 
 
 Stiles, 1 Caines' R. 503. Jackson v. Stiles, 3 ib. 133. Den v. , 
 
 2 Halstead's E. 161. Goodtitle v. Badtitle, 4 Taunt. E. 820. Doe 
 V. Eoe^ 5 ib. 205. Doe v. Eoe, 4 Dowl. P. C. 115. Doe v. Eoe, 
 11 Adolph. & Ell. E.. 333. Doe v, Eoe, 13 Price's E. 260. Sed 
 vide Doe v. Eoe, Bujt. E. 1996. Dolls v. Passer, Strange's E. 
 975. Mason v. Hodgson, Barn. E. 250. Den v. Fen, 5 Ilalst. 
 E. 237. Den v. Applegate, 7 ib. 241. Gover v. Cooley, 1 Harr. 
 & Gill's E. 7. Breading's Heirs v. Taylor, 6 Dana's E. 226.) 
 
 The courts are, of course, more stringent as to granting rules to 
 open a regular judgment after the possession of the premises in 
 dispute has been changed, than while the parties continue in the 
 relative positions they occupied at the commencement of the pro- 
 ceedings ; but in a proper case the judgment will be opened, and 
 the possession restored to the tenant. ( Vide Doe v. Roe, 3 Taunt. 
 E. 506. Doe v. Williams, 2 Adolph. & HI. E. 381. Doe r. 
 Orulle, 5 Barn. & Cres. E. 457.) 
 
 CHAPTEE XXiy. 
 
 OF THE APPEAEANCE OF THE DEFENDANT IN THE ACTION OF EJECT- 
 MENT — 'WHO MAT DEFEND THE ACTION — THE CONSENT EULE. 
 
 By the general rules and regulations of the English courts, 
 lately in force, a party entitled to appear to a declaration in eject- 
 ment might appear and plead thereto at any time after service of 
 such declaration, and before the end of the fourth day after the 
 term in which the tenant was required by the notice to appear, and 
 might proceed to compel the plaintiff to reply thereto, or might 
 56 
 
442 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 sign judgment of non pros., notwithstanding such plaintiff may 
 not have obtained a rule for judgment on such service of declara- 
 tion ; and that a plaintiff, who may have omitted to obtain a rule 
 for judgment within the time prescribed by the rules and practice 
 of the court, should be entitled, on production of such plea, to an 
 order of a judge for leave to draw up a rule for judgment as 
 of the time at which such rule for judgment should have been 
 obtained. (General Rules and Regulations, 2 Scott's N. K. 430. 
 7 Mees. & Wels. 346. 5 Jur. 2. 1 Adolph. & Ell. K S. 2. 
 2 Man. & Gr. 239.) 
 
 By the present statute in force in England, the action of eject- 
 ment is commenced by the service of a writ which " shall state the 
 names of all the persons in wliom the title is alleged to be, and 
 command the persons to whom it is directed to appear, within six- 
 teen days after service thereof, in the court' from which it is issued, 
 to defend the possession of the property sned for, or such part 
 thereof as they may think fit, and it shall contain a notice, that, 
 in default of appearance, they will be turned out of possession." 
 (15 and 16 Victoria, ch. 76, § 169.) 
 
 In the American states, the practice with respect to the appear- 
 ance of a tenant in an action of ejectment is generally regulated 
 by statute, and he must appear within the time specified in the 
 notice at the foot of the declaration served. Where the practice 
 in this respect varies by statute in any of the several states, the 
 same will be noted hereafter. 
 
 If the tenant neglects to appear within the time required, a rule 
 for judgment against the casual ejector will be granted as stated 
 in the preceding chapter ; and the landlord has no right to appear 
 in the action of ejectment until this rule for judgment against the 
 casual ejector is obtained. {Doe v. Soe, 7 Scott's E. 769.) 
 
 II. The question as to what parties may defend the action of 
 ejectment is one of considerable interest, and not always entirely 
 free from doubt. The tenant in possession ia prima facie the per- 
 son interested in the premises, and is therefore the partj"^ on whom 
 the declaration and notice are served ; although it often happens 
 that the land is claimed by some person out of possession, who 
 alone is interested in vindicating the title. By the common law, 
 the tenant in possession was under no obligation to give notice to 
 his landlord of the service of the declaration and notice in eject- 
 ment, and if the tenant did give the notice, the landlord was not 
 
WBO MAT DEFEND IN EJECTMENT. 443 
 
 permitted to appear and defend the action unless the tenant con- 
 sented to become a co-defendant with him ; and therefore much 
 inconvenience and expense not unfrequently happened to the 
 party really interested to defend the action, by the negligence or 
 fraud of the tenant in possession. {Goodright v. Hart, Strange'a 
 K. 880. Anonymous, 12 Mod. R 211.) To meet this difficulty, 
 and remedy these imperfections of the common law, the British 
 parliament passed an act by which the courts are authorized to 
 suifer the landlord to make himself defendant by joining with the 
 tenants, in case they shall appear; and in case the tenants neglect 
 or refuse to appear in the action, the court will permit the land- 
 lord to do so, judgment being first signed against the casual 
 ejector, and order a stay of execution upon the judgment against 
 the casual ejector, until the further order of the court. (11 
 George II, ch. 19, § 13.) 
 
 It has been asserted, that this statute is only a legislative sanc- 
 tion -of the previous uniform practice of the courts in the cases 
 referred to, and it may not be uninteresting or unprofitable to give 
 a brief history of the practice of the courts in such cases prior to 
 the above enactment. 
 
 In a ease before the court of king's bench in 1762, when Lord 
 Ma,nsfied presided in that court, Mr. Justice Wilmot, in consider- 
 ing this very statute, observed that it was very remarkable that 
 two different acts of parliament had been made, at near five hun- 
 dred years' distance, upon the very same subject, when there was 
 no occasion for either ; namely, the statute of Westminster, 2, 
 which seems to have been passed in 1285, and this act of 11 
 George II, chapter 19. 
 
 The statute of Westminster, he said, was not a new provision ; 
 for, hefore that statute, all those that stood hehind the tenant in 
 possession had always a right, at common law, to come in and be 
 received, pro interesse suo, to defend the possession ; which was 
 very material to them, and by the change whereof they would 
 have been greatly incommoded. And he said he was persuaded 
 that the more this doctrine of reoeit was looked into, the stronger 
 this would appear. And thereupon he wondered that there should 
 have been any doubt, before the act of 11 George II, of. admitting 
 landlords to defend in the stead of the tenant in possession ; 
 especially as they were suffered to make themselves co-defendants 
 with the tenants. And, after referring to Coke and Bracton, 
 
444 JOAW OF EJECTSIENT AND ADVERSE ENJOYMENT. 
 
 without specifying any particular passages or pages, the learned 
 justice declares, that hefore the acts of 11 George II, chapter 19, 
 " it was certainly the practice to admit the landlord and the tenant 
 in possession co-defendants." 
 
 It seems that Mr. Justice Wilmot likewise took notice that not- 
 withstanding all the pains that the legislature had taken to cut oft 
 dilatories, yet it was the courts of "Westminster hall to whom the 
 public were obliged for finding out this easy and expeditious meiho^ 
 of trying titles by ejectments. 
 
 And it appears from the observations of Lord Mansfield in the 
 same case; that no case had been found prior to that of Goodright 
 V. Hart, in Strange, where the court had refused to let in persons 
 who stood behind the tenant in possession, to defend pro interesse 
 suo, in the stead of the tenant in possession. The precedents 
 before that case seem to be more liberal. 
 
 In 1652 it was said by the prothonotary (then called jprotonotari/), 
 " that the court would, upon terms, allow him who alleged title to 
 defend it." 
 
 In the 7th of King "William, Lord -Bath, claiming the reversion 
 by deed, after the death of the tenant for life, who received the 
 rent, was admitted a defendant, because it might shake his title. 
 
 In the 10th of King "William, it is laid down as a certain rule in 
 the case in 12 Modern reports, 211 : " if notice in ejectment be 
 .given to an under-tenant, and he doth not acquaint his landlord 
 therewith, but suffers judgment to go against him, the court, 
 upon motion, will not suffer execution to be taken out till the right 
 be tried/" which Lord Mansfield considered decisive, that the 
 landlord should not be betrayed, but might defend alone. 
 
 In thelst of Queen Anne, Lord Holt says : " It is due of right to 
 the landlord to be made defendant ; for otherwise the tenant in pos- 
 session might combine with the lessor of the plahitiff and oust the 
 landlord of his rent, and to deny the lady that right would be 
 upon the presumption of her marriage, which would be directly 
 to determine the point in question." And Lord Mansfield adds : 
 " The combination of the tenant in possession could not be pre- 
 vented, unless the landlord might defend alone." 
 
 A little further on Lord Mansfield says : " 77ms stood the 
 reasoning and pradice, when the motion was made in Goodright v. 
 Hart et ux. in 2 Geo. II. It seems to have been very little con- 
 sidered. The only reason given why the tenant might betray his 
 
WBO MAY DEFEND IN EJECTMENT. 445 
 
 landlord by refusing to appear ('because the landlord was made 
 a defendant una cum the tenants in possession '), equally, at least, 
 proved \he contrary. It was a breach of the rule in the tenant to 
 prevent his defending. No wonder Sir John Strange adds a ' quaere 
 tamen ; for, this is giving tenants much too great a power ; and 
 makes them absolute masters of tlie estate, and to choose their 
 own landlords.' The court refusing to relieve them, he practiced 
 with the tenants, to attorn. Then the plaintiff in ejectment moved ; 
 but was denied relief. So the court first suffered the plaintiff in 
 ejectment, by corrupt practice with the tenants, to dispossess the 
 landlord by a judgment, without any opportunity of trial; and 
 then suffered the landlord, by corrupt practice with defendants, to 
 defeat the judgment and possession given in consequence thereof. 
 This case certainly occasioned the clause in the act of parliament 
 relative to this subject. As the parliament has contradicted it, 
 one may venture to say ' it was hasty.' Every reason of private 
 justice and public convenience, and every authority was the other 
 way." {Fairclaim v. Shamtitle, 3 Burr. E. 1290, 1301-1303.) 
 From the observations of Lord Mansfield in the case of Fairclaim 
 V. Shamtitle, it is quite evident that the practice had been really 
 unsettled until the decision of that case ; and that the statute of 
 11 George II, chapter 19, section 13, was enacted for the purpose 
 of putting the matter at rest. Of course it is easily to be seen 
 that when the sole question turns upon " who ought to be landlord 
 to the tenant in possession," he should stand neuter, and his pos- 
 session, avail neither; and let the question be tried between the 
 claimants. But it was not worth the tenant's while to defend the 
 action himself, because his possession would be determined imme- 
 diately, whichever side prevailed ; and he was, therefore, often 
 tempted to perpetrate a fraud upon the landlord for a trifling con- 
 sideration, and thus put him to great inconvenience and expense. 
 So the enactment of the statute would seem to have been both 
 suitable and necessary, and the same has been re-enacted pretty 
 generally in this country. By the words of the statute the courts 
 can admit landlords only to defend, and difiiculties have often 
 arisen as to the meaning of the word landlord, in the act, and as 
 to the interest in the disputed premises, which will be sufficient to 
 entitle a person claiming title to appear and defend the action. 
 Upon this subject Lord Mansfield says : " An ejectment is an 
 injurious fiction for the trial of titles to the possession of lands. 
 
44:6 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In form it is a trick between two to dispossess a third by a sham 
 suit and judgment. The artifice would be criminal unless the 
 court converted it into a fair trial with the proper party. The 
 control the courts have over the judgment against the casual ejector 
 enables them to put any terms upon the plaintiff, which are just. 
 He was soon ordered to give notice to the tenant in possession. 
 When the tenant in possession asked to be admitted defendant, the 
 court was enabled to add conditions / and therefore obliged him to 
 allow the fiction, and go to trial upon the real merits. It might 
 happen that the tenant in possession was a mere farmer at will. 
 He was bound to give notice to his landlord. The same reason, 
 of a fair trial with a proper party, required the landlord to be ad- 
 mitted defendant ; with the tenant, if he was amicable ; or without 
 him, if he, contrary to the duty of his relation, should betray him. 
 There can be no ground for admitting the landlord as co-defendant, 
 which does not hold to his defending alone in case the other 
 abandons. The plaintiff ought not to recover by collusion with 
 one to the prejudice of a third ; he ought not to recover without 
 a trial with the person interested in the question, and affected by 
 the judgment. Every point relative to the proceedings in eject- 
 ment is of consequence. I am glad we have this occasion. There 
 are two matters to be considered : 
 
 " First, whether the term ' landlord^ ought not, as to this pnrpose, 
 to extend to every person whose title is connected to and consistent 
 with the possession of the occupier, and divested or disturbed by 
 any claim adverse to such possession ; as in the case of remainders 
 or reversions expectant upon particular estates; secondly, whether 
 it does not extend, as between two persons claiming to be landlords 
 de jure, in right of representation to a landlord de facto, so as to 
 prevent either from recovering by collusion with the occupier, with- 
 out 2. fair trial with the other. "Where a person claims in opposition 
 to the title of the tenant in possession, he can in wo light be con- 
 sidered as landlord ; and it would be unjust to the tenant to make 
 Mm co-defendant; their defenses might clash. Whereas, where 
 there is privity between them, the defense must be upon the same 
 iottom; and letting in the person behind can only operate to pre- 
 vent treachery and collusion. It is no answer, that any person 
 affected by the judgment may bring a new ejectment, because there 
 is a great difference between being plaintiff or defendant in eject- 
 ment." The question in the case was, whether one claiming as lord 
 
WEO MAT DEFEND IN EJECTMENT. 4A1 
 
 by escheat should be admitted defendant in ejectment, brought 
 against the tenant in possession, by the lessor of one claiming as 
 heir at law ; and the court did not decide it for the reason that, on 
 the recommendation of the court, the parties consented to a fair 
 trial of the lord's title to claim by escheat. The principle, how- 
 ever, was established, that the statute was to be interpreted, so as 
 to extend the word landlord to all persons claiming title, consistent 
 witli the possession of the occupier; and that it is not necessary 
 they should previously have exercised any act of ownership over 
 the lands in dispute. {Fairclaim v. Shamtitle, 3 Burr. E. 1290, 
 1294, 1295.) 
 
 This case of Fairclaim v. Shamtitle is dwelt upon here thus 
 elaborately, for the reason that it is among the earliest cases that 
 seems to have arisen under the act of 11 Geoi'ge II, chapter 19, 
 and was very learnedly argued by distinguished counsel, and care- 
 fully examined by an exceedingly able and accurate bench of judges ; 
 and the principles established by it have been recognized both in 
 this country and in England ever since. It was argued by the 
 counsel for the plaintiff, who sought to deprive the person claim- 
 ing as lord by escheat, of his right to defend the action, that those 
 potential landlords cannot be within the statute ; for " such " land- 
 lord, it was contended, must be a landlord to whom the tenant is 
 obliged to deliver the declaration. The act, the counsel said, was 
 made to defend an actual possession only ; not to give one, and a 
 case was cited to prove tliat the court has no jurisdiction to admit 
 any person to defend an ejectment instead of the tenant, except 
 one who is in some degree in possession. Bat the court took an 
 entirely different view of the law, and unanimously affirmed the 
 principle above stated, that the word landlord is extended to all 
 persons claiming title, consistent with the possession of the occu- 
 pier of the land in dispute. At an early day in l^ew York, when 
 the old practice in ejectments prevailed in the state, a motion to 
 admit infa/iits to appear by guardian and enter into the consent 
 rule was made. The declaration in ejectment in the cause was 
 served on the tenant, who was the step-father of the infants, who 
 claimed title to the premises in question, and resided with the ten- 
 ant on the same. The tenant and his wife had been in possession 
 for a number of years, exercising acts of ownership, and the tenant 
 refused to defend. The court held that the infants were entitled 
 to defend by guardian, as landlords of the premises, and declared 
 
'448 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 that " every person may be considered as a landlord for this pur- 
 pose, whose title is connected to and consistent with the possession 
 of the occupier," in accordance with the case in Burrows, above 
 cited. {Jachson v. Stiles, 1 "Wend. E. 316.) The same doctrine 
 has been often recognized in the American courts in such cases, 
 although it must be made to appear to the court that the person 
 applying to be let in to defend the action is the landlord of the 
 tenant in possession, or that a privity of interest exists between the 
 applicant and defendant, although he do not receive rents, which 
 seems not to be the true test. (Jaolcson v. MoEvoy, 1 Caines' E. 151. 
 Den V. Lanning, 6 Halst. E. 185. Buford v. Gaines, 6 Marsh. E. 
 'E. S. 34. Pm-ter v. Robinson, 3 A. K. Marsh. E. 253. Hubert 
 V. Alexander, 2 Call's E. 438. Wisiier v. Wilcochs, 1 Coleman's 
 Cases, 56. Saltonstall v. White, lb. 82. MoGlay v. Benedict, 
 1 Eawle's E. 424.) But where the lessor of the plaintiff in eject- 
 ment claims no more than the interest of the tenant, the landlord 
 is not entitled to be admitted to defend. {Jackson v. Stiles, 
 supra^ Nor will one claiming in opposition to the title of the 
 tenant be admitted defendant in ejectment with the tenant. 
 Neither is he entitled to be admitted a co-defendant with the 
 landlord of the tenant, tliough he claim as tenant in common 
 with such landlord, who is willing and requesting to have him 
 join as defendant. {Jackson v. Flint, 2 Cow. E. 594.) 
 
 The principles laid down in the case in Burrows has been 
 expressly sanctioned by subsequent adjudications in England. For 
 example, in one case it was moved that the cestui que trust might 
 be made defendant in ejectment instead of the tenant in possession 
 of the premises claimed, and it was objected on the part of the 
 plaintiff, that the motion ought not to be granted, because the 
 cestui que trust had never been in possession,' and coxild not be 
 considered as a landlord under the statute 11 George II, chapter 
 19, section 13. Lord Kenyon, C. J., observed: "If the person 
 requiring to be made a defendant under the act had stood in the 
 situation of immediate heir to the person last seised, or had been 
 in the relation of remainderman, under the same title as the origi- 
 nal landlord, I am of opinion that he might have been permitted 
 to defend as landlord, by virtue of the directions of the statute ; 
 but here the very question in dispute between the adverse party 
 and himself is, whether he is entitled to be landlord or not; and, 
 therefore, we are not authorized to extend the provision of the 
 
WSO MAT DEFEND AN EJECTMENT. 449 
 
 statute to such a case as this." {Lovelock v. Doncaster, 3 Term 
 E. 783.) 
 
 A third person will not be allowed to defend an action of eject- 
 ment as landlord, where it appears that the tenant in possession 
 came in as tenant to the lessor of the plaintiff, and paid rent to 
 him, under an agreement which has expired. {Doe v. Smith, 
 4 Maule & Selw. E. 347.) And where, upon an ejectment against 
 the tenant in possession, who came into possession as tenant of 
 the lessor of the plaintiff, a third person, having an adverse title, 
 entered into a consent-rule to defend, as landlord, the court dis- 
 charged the consent-rule, on the ground th^t he was not entitled 
 to defend the action. {Doe v. Bhys, 1 Tounge & Jerv. E. 88.) 
 Neither will the court allow a lessee to defend an action of eject- 
 ment brought against his landlord, or those claiming under such 
 landlord ; that is to say, such lessee will not be permitted to defend 
 such action alone. {Driver v. Lawrence, 2 "W. Black. E. 1259.) 
 
 The court will allow an heir who has never been in possession 
 to defend an ejectment, where the father, under whom he claims, 
 had died just before the application to be permitted to defend, 
 having previously obtained the same rule. {Doe v. Eoe, 3 Term 
 E. 783, note.) So also a devisee in trust, not having been in pos- 
 session of the premises claimed in the ejectment, has been permitted 
 to defend the action upon a proper application. {ILoveloch v. Don- 
 caster, 4 Term E. 122.) And so also the courts always allow a 
 mortgagee to be made a party defendant in ejectment with the 
 mortgagor, provided he is really interested in the result of the 
 suit. {Doe V. Cooper, 8 Term E. 645. Doe v. Roe, 4 Moore & 
 Payne's E. 437. Jackson v. Stiles, 11 Johns. E. 407.) So in the 
 state of New Jersey, the courts permit the mortgagee to be made 
 a defendant to defend an ejectment, unless the lessee of the 
 plaintiff discharges the mortga;ge. {Den v. Fer),, 1 JIalst. E. 478.) 
 A.nd the same rule is extended to an assignee of a mortgage ; that 
 is, he will be permitted to defend the action wherever the mort- 
 gagee himself would be, had he not assigned the mortgage. {Jack- 
 son V. Baloock, 17 Johns. E. 112.) But the courts of England 
 have refused to permit a mortgagee to defend, if it is not made to 
 appear that he is interested in the result of the suit. {Doe v. Roe, 
 6 Bing. E. 613.) And a mortgagor cannot be allowed to defend 
 an ejectment brought by the mortgagee, and claim under a title 
 acquired by him subsequent to the mortgage. {Doe v. Vickers, 
 57 
 
450 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 4 Adolph. & Ell. E. Y82.) Neither can the mortgagor be per- 
 mitted to defend the action against the mortgagee under a prior 
 mortgage executed by him. {Doe v. Clifton, 4 Adolph. & Ell. 
 E. 809.) 
 
 In the state of Pennsylvania, it has been held, that, when, pend- 
 ing an action of ejectment in which husband and wife were lessors 
 in the wife's right by inheritance, a second action was commenced 
 by A against the same defendant to recover the same premises, 
 the husband might come in and defend the second action. {Den 
 V. Steward, 2 Penn. E. 229.) But it has been also held in the 
 same state, that the landlord cannot be permitted to defend alone 
 in ejectment, in the room of the tenant, without the consent 
 of the plaintiff. {Beardsley v. Torrey, 4 Wash. C. C. E. 286.) 
 And in Kentucky, it has been held, that one who has judgment in 
 ejectment, but has not had execution and delivery of possession, 
 cannot be admitted as a defendant in ejectment, when he cannot 
 show that his title is connected to and consistent with the posses- 
 sion of the occupant. {TroublesoTne v. EstiU, 1 Bibb's E. 128.) 
 This, it will be observed, is substantially the rule as recognized in 
 England, hereinbefore stated and explained. But it has been held, 
 that the possession of a widow, remaining in the mansion-house 
 until her dower is allotted, is consistent with the possession of the 
 heirs, and, in an ejectment brought against her, they have a right 
 to defend. {Porter v. Eolinson, 3 A. K. Marsh. E. 253.) 
 
 Evidence tending to prove that the defendant's tenant had been 
 settled on the tract in question, having possession for such a time 
 as, by the statute, would bar the plaintiff's right of action, was 
 held sufiicient to authorize the landlord's admission as defendant. 
 {Buford V. Gaines, 6 J. J. Marsh. E. 34.) So also the fact that a 
 person has been twelve years in possession as purchaser, is held to 
 be a sufficient reason for admitting him to defend in ejectment in 
 place of the casual ejector. ( Waters v, Harrison, 4 Bibb's E. 87.) 
 
 A wife has been permitted to defend the action of ejectment 
 where the title of the plaintiff's lessor arose from a pretended 
 marriage with her, which marriage she disputed. {Fenwiok v. 
 Orovenor, 7 Mod. E. 71.) But a person claiming a right to enter, 
 and perform divine service, has been held not .to have a sufficient 
 title to be admitted defendant in an ejectment. {Martin v. Damis, 
 Strange's E. 914. But vide Hilling sworth v. Brewster, 1 Salkeld's 
 E. 256.) And where the application for admission to defend 
 
WHO MAY DEFEND AN EJECTMENT. 451 
 
 appeared only a device to put off the trial of the case, the court 
 very properly refused to grant the rule. {Fenwiolc's Case, 1 Salk, 
 E. 257.) 
 
 A tenant in common with the tenant in possession will be per- 
 mitted to defend the action of ejectment brought to recover the 
 premises claimed in common. But to entitle a tenant to appear 
 and defend the action of ejectment, as a tenant in common, it 
 must appear, by the affidavit on which the application is made, 
 that he is such tenant in common, or, at least, that he claims as a 
 tenant in common. That he believes the action will involve a 
 question between tenants in common, is not enough. {Jackson v. 
 White, 2 Cow. E. 585.) But an affidavit that the tenant " claims 
 as tenant in common with the lessors of the plaintiff, and that, as 
 he is advised by counsel, and believes he is tenant in common " 
 with them, has been held sufficient to entitle him to appear and 
 defend an ejectment. {Jackson v. Stiles, 6 Cow. E. 391.) 
 
 If a party should be admitted to defend the action of ejectment 
 as landlord where title is inconsistent with the possession of the 
 tenant, the lessor may apply to the court, or to a judge at cham- 
 bers, and have the rule discharged with costs. {Doe v. Hys, 
 2 Younge & Jervis' E. 88.) And if the lessor of the plaintiff in 
 such a case should neglect to get the rule discharged, and the 
 party continues upon the record as ' defendant, it seems that such 
 party will not be allowed to set up such inconsistent title as a 
 defense at the trial. {Doe v. Lady Smythe, 4 Maule & Selw. E. 
 447. Doe v. Litherland, 4 Adolph. & Ell. E. 784.) 
 
 In ejectment, a party may be let in on terms to defend as land- 
 lord, after judgment has been signed against the casual ejector, 
 and a writ of possession has been executed. {Doe v. Hoe, 3 Per. & 
 D. E.'317. But vide Doe v. Eoe, 3 Taunt. E. 306.) And a per- 
 son who, from his own ignorance and that of his attorney, has 
 allowed judgment to be signed in ejectment against the casual 
 ejector, may be let in to defend on payment of costs, {Doe v. Hoe, 
 W., W. & D. E. 371.) And it has been held by the English courts 
 of common law, that after judgment signed against the casual 
 ejector, and writ of possession executed, a judge at chambers may, 
 if satisfied as to the facts, direct the judgment and subsequent pro- 
 ceedings to be set aside on payment of costs, and a party let in to 
 defend as tenant. As where the attorney for the party was duly 
 instructed, to appear, but, through inadvertance, suffered the time 
 
452 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to expire without appearing ; and tjiis, although the case set tip by 
 such partj is that he has been in possession throughout. A ques- 
 tion was raised whether a judge at chambers could grant the order, 
 even though it was proper for the court in term to allow it. But 
 Coleridge, J., said: "Surely it is not an uncommon order; ever 
 since I have been in the profession I have understood that such a 
 power is always exercised, though it is not known how it was 
 acquired. I have done it again and again." Littledale, J., said : 
 " I should have no scruple in making such an order at chambers, 
 upon a proper case ; " and at another stage, observed : " The con- 
 stancy of the practice will account for there being nothing on the 
 point in the reports." And Lord Denman, C. J., remarked that 
 " there would be nothing in such a particular state of things to con- 
 fer jurisdiction, if it did not exist generally ; " showing that there 
 was nothing in the statute conferring such authority upon a judge 
 at chambers, but that it is among the ordinary powers of every 
 judge of a court of general jurisdiction. {Doe v. Itoe, 11 Adolph. 
 & Ell. K. 333.) 
 
 In the American states it is a common practice for the court, 
 after a judgment by default against the casual ejector, to permit 
 the landlord to appear and defend the ejectment. (Jackson v. 
 Stiles, 4 Johns. E. 493. Wood v. Wood, 9 ib. 257.) And where a 
 party is admitted as defendant in ejectment, in place of the casual 
 ejector, without any objection at the time, the propriety of so 
 admitting him cannot be questioned afterward. ( Waters v. Har- 
 rison, 4 Bibb's K. 97.) 
 
 The statutes of the state of Illinois require that a declaration in 
 ejectment shall be served' upon the actual occupant, and the prac- 
 tice of that state authorizes the appearance of the landlord and his 
 defense of the suit, either in his own name or that of the tenant, 
 with his consent. ( Williams v. Brewerton, 3 Gilman's E. 600.) 
 And where a landlord has undertaken the defense of a suit in the 
 name of the tenant, with his consent, the tenant cannot interfere 
 with the cause to his prejudice. Therefore the supreme court 
 of the United States held, that where the defendant in ejectment 
 in the court below died after judgment, and his attorney and land- 
 lord, who had conducted the suit in the name and with the consent 
 of the deceased, sued out a writ of error in the name of the heirs, 
 gave bond for the prosecution of the writ and for costs, a motion to 
 dismiss the writ will not be entertained, although the heirs of the 
 
WSO MAT DEFEND AN EJECTMENT. 453 
 
 deceased authorize the motion to dismiss it, it ai>]oearing to the 
 court that the attorney of the deceased defendant was a bona fide 
 claimant of the land, and was prosecuting the writ of error in good 
 faith. {Kellogg v. Forsyth, 24 How. JST. S. E. 186. Vide Doe v. 
 FranUin, 7 Taunt. E. 9.) 
 
 Where the landlord proposes to he made defendant in ejectment, 
 for the purpose of removing the case from the state court (he residing 
 in another state), the plaintiff cannot insist upon joining the tenants 
 in possession, for the purpose of preventing the removal. It seems 
 that the tenants cannot be compelled to make a defense in any case. 
 {Doe V. Roe, 4 Ham. E. 435.) But a simple agreement to confess 
 lease, entry and ouster, of all the lands described in the defendant's 
 title papers, will not authorize the admission of a defendant in 
 ejectment. {Carter v. Perrot, 1 Overt. E. 65.) 
 
 Evidence tending to prove that the defendant's tenant had been 
 settled on the tract in question, having possession for such a time 
 as, by the statute, would bar the plaintiff's right of action, was 
 held sufficient to authorize the landlord's admission as defendant. 
 {Buford v. Gaines, 6 J. J. Marsh. E. 34.) And that a person has 
 been in possession of the premises in dispute for twelve years as a 
 purchaser, has been held a sufficient reason for admitting him to 
 defend in ejectment, in place of the casual ejector. {Waters v. 
 Harrison, 4 Bibb's E. 87.) 
 
 The court set aside a regular interlocutory judgment (signed for 
 want of appearance), and writ of possession executed, on an affida- 
 vit by the attorney for the landlord and tenant, that he had received 
 instructions for entering an appearance, but had neglected it, owing 
 to matters personally affecting himself, which had prevented his 
 attending to it ; and an averment in the affidavit, that the defend- 
 ant believed the parties to have a good defense to the action, was 
 held to be sufficient, without adding " on the merits." {Doe v. Roe, 
 13 Price's E. 260.) But where a party defends an ejectment as 
 landlord, and the occupiers of the premises have suffered judgment 
 by default, it seems he will not be allowed to object that the 
 occupiers have not received notice to quit -from the lessor of the 
 plaintiff. {Doe v. Greed, 5 Bing. E. 32. Same Gase, 2 Moore's 
 Pr. E. 648.) 
 
 "Where a landlord defrays the costs of defending an ejectment in 
 the name of an illiterate tenant, who gives a retraxit of the plea 
 and cognovit after action, the court of common pleas of England 
 
454 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 will set aside the retraxit and cognovit, and permit the lessor to 
 defend as landlord. {Doe v. Franlclin, 1 Taunt. R. 9. Same Case, 
 1 Chitty's R. 3&0, note.) Although, as a general rule, the court 
 of common pleas will not set aside the judgment and execution in 
 ejectment in order to let in a person to defend, though he make an 
 affidavit setting forth a clear title, and offer to pay costs. {Doe v. 
 Hoe, 3 Taunt. E. 506. But vide Doe v. Hoe, 5 ib. 205.) 
 
 The court will not set aside the appearance of a person who has 
 entered into the consent rule in an action of ejectment, on the 
 ground that he is a mere pauper and has no interest, if he has 
 been treated as tenant by service on him of the declaration, and if 
 he swears positively that he has an interest under an assignment. 
 {Doe V. Gee, 9 Dowl. P. C. 612. Same Case, 5 Jur. 842, B. C.) 
 But when several ejectments were brought against several tenants, 
 each holding different premises of the same landlord, and an 
 application to set aside the appearance, plea, etc., in one of the 
 actions and for leave for the landlord to appear and defend for all 
 the ejectments, it was ordered that the landlord should appear 
 within a fortnight and defend as landlord in all the ejectments, 
 and that in default thereof judgment might be signed against the 
 casual ejector. {TKrustout v. Nixon, 10 Barn. & Ores. E. 112.) 
 And when a party has with others been made a defendant in 
 ejectment, but is not in possession, his name will be struck out on 
 motion, he undertaking to permit execution for any premises of 
 which he might be possessed. {Doe v. Snape, 2 Tyr. E. 340. 
 Same Case, 2 Cromp. & Jer. E. 214. SaTue Case, 1 Dowl. P. C. 
 314.) 
 
 Mr. Adams thinks the true principle of the case of Doe v. Gee, 
 supra, is not the one drawn from it, but the following, namely, 
 that where there are i/wo tenants in possession, one tenant shall 
 not be permitted to appear for the premises in possession of the 
 other tenant, because the claimant has served the declaration 
 upon him in respect of such tenant, as well as the premises in his 
 own possession. (Adams on Eject. 267, note e.) But probably 
 the court will not, in any case, set aside an appearance of a party 
 in ejectment on whom the declaration is served, and who is named 
 in the notice at the foot of the same. Having been in reality 
 made a party to the proceeding, he must be at liberty to appear 
 and defend for himself, although he may not be permitted to do 
 any thing to the prejudice of any other party in interest. 
 
WHO MAY DEFEND AN EJECTMENT. 455 
 
 It may be observed tbat it is not absolutely necessary for the 
 landlord to be made defendant in ejectment in order to make his 
 title admissible in evidence ; but with the tenant's consent he may 
 defend in the tenant's name, when he may avail himself of any 
 defense he might have, if admitted in person to appear and 
 defend. This is implied, if not expressly decided, in the case of 
 Doe V. Franklin, 1 Taunt. H. 9, heretofore cited. 
 
 According to the English practice, where several ejectments are 
 brought for the same- premises upon the same demise, they will be 
 consolidated ; but where the possessions of the tenants are differ- 
 ent, the court will not join them on notice of either party. If the 
 plaintiff moves for that purpose, it will be objected that each 
 defendant must have a remedy for his costs. If the defendant 
 moves, it will be answered that the plaintiff might have sued at 
 different times, and that if the action were consolidated he would 
 be obliged to go to trial against all, when perhaps he might be 
 ready to proceed against a part only. {Medlicot v. Brewster, 2 
 Keble's R. 524. Smith v. Crabl, Strange's E. 1149.) The Ameri- 
 can practice is quite similar to the English, although it may be 
 suggested that when the plaintiff's title against all the defendants 
 is the same, he will not be ready to proceed against a part of the 
 defendants before he is ready against all, and therefore in that case, 
 the latter ground above stated would not be applicable in answer 
 to a motion for the consolidation. 
 
 In one case in the state of New York, when the old practice in 
 ejectment prevailed, the suit was against five, who entered into 
 tlie consent rule, and pleaded jointly. Three of the tenants occu- 
 pied jointly and two severally. It was decided that the plaintiff 
 must prove a joint possession, and the two defendants had judg- 
 ment in their favor. In this decision the court were influenced by 
 the consideration that great injustice might be done by making 
 the defendants jointly liable for the mesne profits. (Jackson v. 
 Hazen, 2 Johns. E. 438.) 
 
 In another case, in the same state, and when the same practice 
 prevailed, there were five defendants jointly prosecuted, who ap- 
 peared and pleaded jointly', and entered into the consent rule 
 jointly ; but they all had separate possessions, and the plaintiff 
 had judgment against them separately. (Jackson v. Saines, 5 
 Johns. E. 278.) This case would appear, at first sight, to overrule 
 the case of Jackson v. Hazen y but they are not alike. It is said 
 
456 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 in the latter case, that a joint possession in the defendants need not 
 be proved, which had been decided in the first case ; but there is 
 ao inconsistency in the two decisions ; in both cases the defendants 
 voluntarily entered into a joint consent rule, and pleaded jointly, 
 while in the first case some of the defendants held portions of the 
 premises claimed, jointly, and others separately ; and, in the latter 
 case, all of the defendants held separate parts of the premises 
 claimed, that is to say, each defendant held a distinct portion of 
 the parcel of land claimed. 
 
 And in a still later case in New York, while the old practice 
 still continued, a plaintiff in an action of ejectment brought 
 against eleven persons in possession of distinct portions of the 
 premises claimed, holding by separate titles, though all derived 
 from the same source, but without any connection or community 
 of interest between them, was compelled on the application of the 
 defendants to enter into a separate consent rule with each defend- 
 ant. {Jackson v. Scoville, 5 "Wend. E. 96.) 
 
 In a late ca'se in England, under the present practice there, 
 where ejectment was brought by the lessor to recover an opera 
 house, on the ground that the tenant had committed a forfeiture, 
 application was made for leave to appear and defend the action, 
 by the grantee, from the lessee of a private box for a term of 
 years ; the instrument conveying it was in terms which left it 
 doubtful whether it was a demise of the possession of the box, or 
 a grant of an easement to be present in it ; it was sworn that the 
 applicantwas "in possession of the box;" the court held that on 
 such an application it was sufficient that a prima facie case of 
 legal possession was shown ; and the court granted the leave 
 without coming to any decision on the effect of the instrument. 
 Application was also made by a party who had obtained judg- 
 ment on an ejectment against the lessee, but had not been in pos-. 
 session ; but the court held that he had no such possession as the 
 statute contemplated, and leave was refused. {Croft v. Zumley., 
 4 Ellis & Blackburn's E. 608. Sam^ Case, 82 Eng. C. L. E. 608.) 
 
 III. The practice in the ordinary action of ejectment is peculiar 
 in respect to the way in which the appearance of the defendant is 
 made, and the conditions upon which the appearance is allowed, 
 and it is important that this practice be carefully considered. 
 Sometimes the practice is varied by the statutes of the state, but 
 the common law practice only will be examined in this chapter. 
 
TBE CONSENT RULE IN EJECTMENT. 457 
 
 The appearance of the defendant in ejectment should, in all cases, 
 be entered of the term mentioned in the notice appended to the 
 declaration, and served on the tenant in possession. In England, 
 when the notice was to appear in Hilary term, and the tenant 
 entered an appearance in Michaelmas term, and did nothing 
 further, and the plaintiff's lessor finding no appearance of Hilary- 
 term, signed judgment against the casual ejector, the court held 
 the judgment regular, but afterward set it aside upon payment of 
 costs, and let the defendant in to try the merits. {Mason v. 
 Sodgsov, Barn. E. 250.) 
 
 The appearance of the defendant in an ejectment is made by the 
 entry of what is called a consent rule, with the clerk of the court 
 in which the action is brought. This is a rule entitled in the 
 margin with the names of the plaintiff and casual ejector, and 
 must contain a description of such portion or part of the premises 
 set out in the declaration as the defendant wishes to defend for, 
 and in the body of it must also be stated the consent of both par- 
 ties that the tenant be made defendant. The rule is then signed 
 by the defendant, which is called the agreement for the consent 
 rule, which is then taken with the memorandum of appearance to 
 the proper oflScer for entering appearances, who marks it with the 
 seal of office to denote an appearance is entered, and then the same 
 is taken to the plaintiff's attorney, and delivered to him, together 
 with a plea of the general issue, and the plaintiff's attorney having 
 signed the agreement, it is then taken to the officer for rules of the 
 court in which the action is brought, and the consent rule is drawn 
 thereupon ; which indeed is only a copy of the agreement, with the 
 date of drawing it up, omitting the premises in the margin, and 
 adding, "by the court" instead of the attorneys' names at the end. 
 As has been before shown, where the tenant in possession appears 
 alone, the consent rule is entered as a matter of course, without 
 any motion to the court. So also where the party who wishes to 
 appear is the actual landlord, he may appear as a matter of course, 
 although, if the landlord appears alone, an affidavit must be 
 annexed to the consent rule, proving that the tenant refuses to 
 appear. {Hdbson v. Ddbson, Bam. R. 179. Vide also 2 Sell. 
 Prac. 102.) If the tenant refuse to appear, the landlord cannot 
 appear in his name, nor appoint an attorney to do so for him, and 
 an irregular appearance of this sort will be ordered to be with- 
 drawn. {Roe V. Doe, Barn. E. 39, 178.) It has been held that a 
 68 
 
458 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 consent rnle in ejectment, for the admission ot the landlord to 
 defend the action, need not set out the christian and "surname of 
 the lessor of the plaintiff. {Doe v. Head, 3 Moore's E. 96.) 
 
 The consent rule also provides, that, on the trial of the case, the 
 defendant shall appear in his own proper person, or by counsel or 
 attorney, and confess lease, entry, and ouster, and that he was, at 
 the time of the service of the declaration, in possession of the 
 premises mentioned and specified in the rule, and insist upon the 
 title only, and further, that if, upon the trial of the issue, the said 
 defendant shall not confess lease, entry, and ouster, and such pos- 
 session as aforesaid, whereby the plaintiff sliall not be able further 
 to prosecute the action against such defendant, then no costs shall 
 be allowed for not further prosecuting the same, but the said defend- 
 ant shall pay costs to the plaintiff's lessor in that case, to be taxed 
 by the prothonotary, and finally, that if, upon the trial of the said 
 issue, a verdict be found for the said defendant, or it shall happen 
 that the plaintiff shall not further prosecute his action for any 
 other cause than for not confessing lease, entry, and ouster, and 
 such possession as aforesaid, then the lessor of the plaintiff shall 
 pay to the said defendant costs in that case to be adjudged. The 
 rule entered sometimes varies in its phraseology, but it is required 
 to be substantially as here given. The object of this rule is to 
 insure a trial upon the merits, and to preclude either party from 
 taking advantage of the fictitious proceedings in the action. If 
 the proceedings are by bill, the consent rule also provides that the 
 person applying to be admitted defendant instead of casual ejector, 
 shall file common bail ; but usually the action is commenced 
 by the service of a declaration ; and where the landlord appears 
 alone, the rule provides that the plaintiff shall be at liberty to 
 sign judgment immediately against the casual ejector, but that 
 execution be stayed until the court shall further order. 
 
 If the landlord desires to omit any thing which is contained in 
 the ordinary consent rule, or insert any thing which is not usually 
 inserted therein, he must apply to the court, upon affidavit, for 
 leave to enter into a special consent rule. For example, in a 
 proper case, the consent rule may provide that the defendant be 
 required to confess lease and entry at the trial, but not ouster also, 
 unless an aoUial ouster of the plaintiff's lessor be proved; but 
 entering into a special consent rule is not a matter of course, but 
 must be on special application to the court. {Jackson v. Stiles, 2 
 
THE CONSENT RULE IN EJECTMENT. 459 
 
 Cow. E. 442.) And from the fact that the defendant in ejectment 
 is required to apply specially to the court for leave to enter into a 
 a special consent rule, he is entitled to have the costs of his appli- 
 cation taxed in his final bill of costs, if he is successful. {Jackson 
 V. Lyth, 4 Cow. E. 16.) 
 
 The courts always allow the special consent rule, only requiring 
 the defendant to consent to admit ouster at the trial, where it is 
 actually proved, unless it appears upon the application that the 
 claimant has been actually obstructed in his occupation. {Anony- 
 mous^ 1 Mod. E. 39. Oates v. Brydon, 3 Burr. E. 1895. Doe v. 
 Roe, 2 Taunt. E. 397.) This statement, however, should be quali- 
 fied to the effect that the privilege of the special consent rule is 
 limited to the co-tenant himself, and will not be extended to his 
 under-tenant. {Doe v. Hoe, 4 DowL P. C, 628.) 
 
 If the defendant claim title as tenant in common, he ought to 
 enter into the consent rule specially ; otherwise, if he enter into 
 the usual consent rule, he cannot object that no actual ouster was 
 proved at the trial. {Jackson v. Denniston, 4 Johns. E. 311.) 
 And where the defendant in ejectment means to defend as a ten- 
 ant in common with the lessors of the plaintiff, on the ground 
 •that there has been no ouster of the co-tenants, he should apply 
 to the court, on affidavit, for leave to enter into the consent rule 
 specially, stipulating to confess lease and entry only, not ouster, 
 unless an actual ouster of the lessors should be proved at the trial. 
 {Jackson v. Lyons, 18 Johns. E. 398.) 
 
 In an action of ejectment against one tenant in common, who 
 has been ousted, against his co-tenant, the latter may enter into 
 the consent rule, where he does not dispute the title, as to part of 
 the premises only, and the plaintiff-may take judgment as to the 
 residue, and recover the mesne profits thereof from his co-tenant, 
 and let the action go on as to the residue. {Langendyck t. Bur- 
 hans, 11 Johns. E. 461.) And the rule would seem to be general, 
 that, in ejectment, where a tenant appears and defends for a part 
 only of the premises, the plaintiff may proceed and take judgment 
 against the casual ejector for the residue on the usual affidavit. 
 For example, the defendant entered into a special consent rule, 
 describing particularly the premises for which he intended to 
 defend, leaving about seventy-seven acres of land in the farm for 
 the recovery of which the suit was brought, as to which neither 
 the defendant nor any other person appeared. The plaintiff, on 
 
460 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 entering the rule for the tenant to appear and enter into the 
 consent rule, filed the usual afiidavit of service of a copy of the 
 declaration in ejectment, and notice on the defendant, describing 
 him as tenant in possession of the premises, or oi some part thereof. 
 Not receiving notice of any other appearance or other consent rule 
 than that above described, the plaintiff entered the default of the 
 tenant and took a rule for judgment against the casual ejector for 
 that portion of the lands not included in the consent rule, per- 
 fected the judgment, and obtained possession of the land on a writ 
 of habere facias possessionem. A motion was made to set aside 
 the default and subsequent proceedings as irregular ; but the court 
 held that the plaintiff was regular, and denied the motion. {Un- 
 derwood ads. Jachson, 1 Wend. K. 95.) But, in Pennsylvania, it 
 is held, that in ejectment the defendant must confess "lease, entry 
 and ouster " for all the tenements laid in the declaration ; con- 
 fession for a part only, it seems, will not be allowed. ( Wilson v. 
 Campbell, 1 Dallas' E. 126.) 
 
 The practice requires that the consent rule in ejectment shall 
 admit at the trial that the defendant was in possession of the 
 premises specified at the time of the service of the declaration ; 
 and it has been held that this extends to municipal corporations ; • 
 and the corporation must confess in that form, though the eject- 
 ment be brought to enforce an elegit against their lands, and the 
 defense be, that the lands are not possessed by the corporation for 
 any but public purposes ; and therefore were not liable to execu- 
 tion. The required confession in the consent rule does not exclude 
 such defense. {Doe v. Roe, 1 Adolph. & Ell. E. N. S. TOO.) The 
 court will not let in a corporation to defend an ejectment withoiit 
 entering into the usual consent-rule to admit possession, on the 
 ground, whether well or ill-founded, that the land of a corporation 
 cannot be taken in ejectment on a writ of elegit upon a judgment 
 against the corporation for debts contracted since the passing of 
 the municipal corporation act. {Doe v. Roe, 1 Gale & D. E. 202, 
 220. Same Case, 6 Jur. 101.) 
 
 It has been held that an admission in the consent rule that the 
 defendant was in possession by " a certain tin-bound (setting out its 
 abuttels), containing a certain mine, etc.," is insufficient under the 
 rule requiring the consent rule to admit the party to be in posses- 
 sion of the premises ' claimed. The consent rule must admit the 
 party to be in possession of something for which ejectment will lie ; 
 
TEE CONSENT BULE IN EJECTMENT. 461 
 
 and a tin-tound is a mere easement. The defense in snch case 
 should be for the mine which the defendant is -working under the 
 tin- bound- {Doe v. Alderson, 1 Mees. & Welsh. E. 210.) 
 
 It has been held in the state of Tennessee, that an agreement to 
 confess lease, entry, and ouster of "all the lands described in the. 
 defendant's title papers," is not a suflBcient agreement upon which 
 to admit the landlord to appear in the action of ejectment as 
 defendant, and -defend the same. {Carter's Lessee v. Parrot, 1 
 Tenn. E. 65.) And in that state, it seems that, in order to admit 
 one as defendant in an ejectment, it must appear of record that 
 he entered into the consent rule, gave security for costs, and 
 pleaded not guilty. {Price v. Carter, 5 Yerger's E. 302.) Con- 
 fession of lease, entry and ouster, in ejectment, it is held, extends to 
 an entry to complete the title to the action, but not to an entry 
 which is requisite to regain and revest the possession. {Holt v. 
 Smith, 1 Har. & McHenry's E. 273.) According to the late Eng- 
 lish practice, and the practice in some of the states, the consent 
 rule will, in all cases, be sufficient to prevent a nonsuit for want 
 of a real lease, and of a real entry and ouster ; and if the consent 
 rule in ejectment requires the defendant to confess, on the trial, 
 the possession of the premises, as well as the lease, entry and 
 ouster, it is evidence of the possession as well as the other facts 
 which are admitted. {Rawley v. Doe, 6 Blackf. E. 143.) 
 
 If a party appear with others and enter into the consent rule by 
 mistake, on a proper application to the court his name may be 
 struck out of the rule, usually upon the condition, however, that 
 he undertake to permit execution to issue for any part of the prem- 
 ises in dispute of which he may be found to be in possession. 
 {Doe V. Snape, 1 Dowl. P. C. 314.) 
 
 Twelve defendants in ejectment entered into a general joint 
 consent rule, not specifying the premises for whiph they severally 
 defended ; at the assizes the judge made an order that the record 
 should be amended, by allowing two of the defendants to with- 
 draw their plea, and suffer judgment by default, but no express 
 order was made as to any amendment of the consent rule. The 
 trial proceeded ; those two defendants did not appear, but the other 
 ten made a complete defense ; the court held, that the order did 
 not virtually operate as an amendment of the consent rule also, 
 and that the plaintiff was, notwithstanding the order, entitled to a 
 verdict against all the defendants. But the court directed that 
 
462 LAW OF HJECTMBNT AND ADVERSE ENJOYMENT. 
 
 the ten defendants who went to trial should be allowed the costs 
 of their defense on taxation. {Doe v. Hughes, 2 Cromp. Man. & 
 Eoscoe's R. 281. 8ame Case, 4 Dowl. P. C. 442. Same Case, 5 
 Tyr. E. 957. Same Case, 1 Gale's E. 263.) 
 
 The authorities are not uniform as to whether the plaintiff is 
 required to produce the rule to confess lease, entry and ouster, as 
 a part of his case on the trial of an ejectment. Certainly in one 
 case, it was held that the plaintiff was required to produce the 
 rule on the trial. {Doe v. Lanible, 1 Moore & Malkin's E. 237.) 
 But in other English cases it has been held in so many words, that 
 at the trial of an ejectment it is not necessary for the lessor of 
 the plaintiff to produce the consent rule as part of his case, so 
 as to require the defendant to confess lease, entry and ouster; and 
 further, that if the defendant appear and refuse to confess lease, 
 entry and ouster, the lessor of the plaintiff is not entitled to have 
 a verdict entered for him, but must be nonsuited in the ordinary 
 way ; but he is entitled to sign judgment against the casual 
 ejector, and issue execution. {Fleming v. Armfield, 1 Dowl. N. 
 S. 327.) By the late English practice, it would seem, that where 
 there was no doubt as to the identity of the premises sought to be 
 recovered with those for which the tenant defends, the lessor was 
 not required to produce the consent rule. {Doe v. Hdby, 2 Barn. 
 & Adolph. E. 948.) And, of course, if the defendant confesses the 
 ouster, according to the agreement in the consent rule, it is not 
 necessary to prove an actual ouster on the trial. {Davis v. White- 
 sides, 1 Bibb's E. 510. Armstrong v. Tim/mans, 3 Harrington's 
 E. 342.) 
 
 By the form of the consent rule last adopted in England, while 
 the ordinary practice was in vogue, proof at the trial of the pos- 
 session by the defendant of the disputed premises was unnecessary, 
 and as the consent rule was annexed to the record, no questions 
 could arise as to the necessity of its " production as part of the 
 plaintiff's case, and it would seem from a late case under that 
 practice that the defendant might be called on to confess lease, 
 entry and ouster, in the ordinary manner, although the consent 
 rule should not have been drawn up. {Doe v. Armfield, supra.) 
 
 Of course, under a special consent rule, to admit lease, entry 
 and buster, in case an actual ouster be proved, but not otherwise, 
 such ouster must be shown, or the plaintiff will fail. {Jackson v. 
 Zeek, 12 Wend. E. 105.) And in one case it was held that the 
 
THE PLEA IN EJECTMENT. 463 
 
 lessor of the plaintiff in ejectment is bound to prove the defendant 
 in possession of the land for which the action is brought, although 
 the latter have entered into the general consent rule. {AUmrton 
 V. Reirs of Redding, 1 K C. Law Eepos. 274.) 
 
 But from the fact that the practice in respect to the consent rule 
 required by the ordinary practice in ejectment has been greatly 
 changed, or entirely abolished, both in England and in many of 
 the American states, perhaps it would not be discreet to dwell 
 upon the subject longer in this place ; but from the fact that the 
 j}rinciples considered in this chapter have such a general applica- 
 tion to the action of ejectment, in many of its aspects, even as at 
 present prosecuted in all the states, and in England, an acquaint- 
 ance with the subject is necessary and important. 
 
 # 
 
 CHAPTEE XXY. 
 
 THE PLEA OF THE DEFENDANT IN THE ACTION OF EJECTMENT — THE ISSUE 
 IN THE ACTION — THE PLEA PUIS DAEEIEN CONTINUAlfCE. 
 
 The plea of the defendant in the action of ejectment at common 
 law is invariably the plea of the general issue. As has been before 
 observed, this plea is required to be left by the defendant with the 
 agreement for the consent rule, and if not so left the plaintiff must 
 give a rule to plead, and then judgment may be entered for want 
 of a plea as in other actions, without a special motion in court for 
 that purpose. This practice is regulated by the rules of the court, 
 and is in accordance with the rules lately in force in the English 
 courts, and also in the American courts, when and where the com- 
 mon law practice prevailed. 
 
 The general issue in the action of ejectment is not guilty, and 
 in England, when the common-law practice prevailed there, was 
 substantially in the following form : 
 
 CD. 1 
 
 ada. V Term, etc. 
 
 Doe, on the demise of A. B. ) 
 
 And the said C. D., by L. M., his attorney, comes and defends 
 the force and injury, when, etc., and says he is not guilty of the 
 
464 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 supposed trespass (or if several ousters are laid in the declaration 
 of the supposed trespasses and ejectments), above laid to his charge, 
 in manner and form as the said John Doe hath above thereof com- 
 plained against him ; and of this, he, the said 0. D., puts himself 
 upon the country, etc. 
 
 In the American states, wherever the common-law practice in the 
 action prevails, and in those states where the plea of the general 
 issue in the action is sanctioned by statute, the plea varies a little 
 from the English form, and is substantially as follows : 
 
 SUPREME COURT. 
 CD. 
 ads. 
 
 A. B. ; 
 
 And the said C. D., by G. H., his atttomey, comes and says that 
 he is not guilty of unlawfully withholding the premises claimed by 
 the said A. B., as alleged in the said declaration of the said A. B. ; 
 and of this, he, the said C. D., puts himself upon the country ; and 
 the said A. B. doth the like, etc. G-. H., 
 
 Attorney for deft. 
 
 It seldom happens by reason of the consent rule, that the 
 defendant, at common law, can plead any other plea than that of 
 the general issue, in the action of ejectment. Indeed, no other 
 plea in bar can be necessary ; for the reason that the claimant in 
 the action is required to prove his right to the possession of the 
 premises in dispute, under this plea. Consequently, whatever 
 operates as a bar to the plaintiff's right of possession, must cause 
 him to fail in his proof of title, and entitle the defendant to a 
 verdict upon the general issue. Should the circumstances require 
 it, however, the court would permit the defendant to set np his 
 defense by way of a special plea. {Phillips v. Bury, Garth. E.. 
 180.) In some of the states they have a statute providing for the 
 plea of the general issue in the action, and declaring what evi- 
 dence is admissible under such plea ; and in such cases the statute 
 usually declares that the defendant may give in evidence, under 
 the plea of the general issue, most matters which are available as 
 a defense to the action. It has been judicially declared in so many 
 words, that in the action of ejectment, as conducted at common 
 law, the plea must be the general issue, and that the defendant 
 
THE PLEA IN EJECTMENT. 465 
 
 M-ill not be permitted to plead specially in bar in this action, mat- 
 tors -wliicli in most actions would be required to be set up specially ; 
 and consequently that all sucli matters may be given in evidenjjc 
 nnder the plea of tbe general issue. For example, where a party 
 may avail himself of a former verdict or decree by way of 
 estoppel, he must plead the same in bar of a suit, or in answer to 
 a plea, or he will be deemed to have waived the estoppel, and to 
 have consented that the jury shall re-investigate the facts, and find 
 according to the truth of the case. A former verdict is not con- 
 clusive as evidence; it is only so when pleaded. This is the 
 general rule, but it is held not to apply to actions of ejectment, 
 because the party will not be permitted, in such actions, to plead 
 the matter specially,, as a bar. From well-established principles 
 it necessarily follows that in ejectment, where special jpleading is 
 not allowed, the defendant, in support of his possession, may give 
 in evidence any matter which would have operated as a bar if 
 pleaded by him by way of estoppel to a real action brought for the 
 recovery of the same premises ; and the lessor of the plaintiff, on 
 the other hand, may give in evidence any matter which might 
 lia\-c been replied by him as an estoppel to a plea of title by 
 the defendant in a real action, or in a suit for trespass. In 
 the action of ejectment at common law, the defendant cannot 
 plead that the plaintiff ought to be precluded from his action 
 because a former judgment had passed against the plaintiff upon 
 the validity of his pretended title. This is a case, therefore, in 
 which the defendant certainly cannot bo said to waive the estoppel, 
 or to neglect to plead it, or consent that the jury shall pass upon 
 the question ; he must plead the general issue only, and under that 
 issue the judgment must be conclusive, or else he has not the pro- 
 tection of the general rule. Tlius it will be seen, that in such a 
 case if the former judgment when given in evidence under the 
 general issue is not conclusive, the defendant's rights are sacrificed 
 by an exception to a general rule, although in his case the reason 
 of the exception altogether fails. Under these circumstances, 
 the effect of this nature of evidence is held to be the same in the 
 action of ejectment, when given under the plea of general issue, 
 as in other cases when specially pleaded in bar. ( Vide Wood v. 
 Jackson, S Wend. E. 9. Howard v. MitcMl, 14 Mass. E. 243.) 
 
 A plea to the jurisdiction of the court may be pleaded in tlie 
 action of ejectment by permission of the court, bi\t not otherwise; 
 59 
 
466 LAW OF EJECTMENT AND ADVERSE. ENJOYMENT. 
 
 and the application for permission to interpose such a plea must 
 be made to the court upon affidavits showing the facts desired to 
 be pleaded. (Doe v. Hoe, 10 East's E. 623.) Ancient demesne in 
 England is a good plea in ejectment ; but as the same is a plea 
 in abatement, the defendant will only be permitted to plead it by 
 an application to the court upon an affidavit showing that the 
 lands in dispute are held of a manor which is ancient demesne ; 
 that there is a court of ancient demesne regularly holden, and that 
 the claimant has a freehold interest ; and tlie court will refuse the 
 motion if any of these facts be omitted in the affidavit ; that is to 
 say, such was the practice in England previous to the passage of 
 the common law procedure act, now in force there. {Doe v. Jioe, 
 2 Burr. K. 1046. Denn v. Fenn, 8 Term E. 474.) 
 ■ According to the practice at common law, when the party 
 appearing has entered into the consent rule and pleaded, he may 
 move for a rule to reply, before the plaintiff's lessor has joined in 
 the consent rule, and nonpros, the plaintiff; and from some of the 
 decisions, it seems probable that the courts would, in such case, 
 compel the plaintiff to pay the costs, although a contrary rule 
 formerly prevailed in England, and the courts of this country 
 have sometimes refused to make a rule on the lessor of the plaint- 
 iff to pay costs on a judgment of non pros, against him for refus- 
 ing to join in the consent rule. ( Vide Goodright v. Bddtitle, Blk. 
 E. 763. Anonymous, 3 Halst. E. 268.) After issue joined, the 
 defendant also may move for judgment as in case of nonsuit, 
 although the lessor of the plaintiff has not joined in the consent 
 rule {Doe v. Smith, 9 Dowl. P.O. 1011); and in accordance with 
 the universal practice in this country, in case the motion for judg- 
 ment as in case of nonsuit, be granted, the lessor of the plaintiff 
 would be required to pay costs. 
 
 The issue in the action of ejectment, at common law, must agree 
 with the declaration against the casual ejector in all respects, 
 except in the defendant's name, unless an order for the alteration 
 be obtained ; and if there be a difference between the issue in the 
 declaration, the court on motion will set the matter right. But if 
 there was such a variance, it will be disregarded after trial and 
 verdict. {Boss v. Bradford, Ld. Eaym. E. 1411. Doe v. Wylde, 
 2 Barn. & Aid. E. 471. Jones v. Tatham, 8 Taunt. E. 634.) And 
 generally in this country, so long as the old practice prevailed in 
 the action of ejectment, no formal joinder of issue was necessary 
 
TBE ISSUE IN EJECTMENT. 467 
 
 in the cause. The issue was regarded as joined when the plea of 
 the general issue was filed and served, although the practice in 
 this respect was wholly regulated by statute. {Gallagher v. 
 MoJVutt, 3 Serg. & Eawle's E. 409.) 
 
 The courts were formerly much more strict in relation to vari- 
 ances than latterly. In a case of ejectment under the old practice 
 in England, the demise was laid to be by the mayor, burgesses, 
 etc., of the borough of M., and on the trial it turned out from the 
 charter that the. name of the corporation was, " The Mayor, etc., 
 of M. ;" but the court held that this was no variance, it appearing 
 from the charter, which was in evidence, that M. was a borough 
 town. Bayley, J., said : " It seems to me, that in this case there is 
 no variance ; it is stated in the declaration, that the mayor, alder- 
 men, capital burgesses, and commonalty of the borough town of 
 Maldon, demised to the plaintiff. That is a fact which, if not 
 admitted by the confession of lease, entry, and ouster, would 
 require to be proved. It is, however, necessary, notwithstanding 
 such confession, to prove the real title to the property to be in 
 them, for otherwise they cannot i-ecover. It is said, that there 
 are no such persons as the mayor, aldermen, capital burgesses, 
 and commonalty of the borough town of Maldon, • the name in 
 the charter being the mayor, etc., of Maiden. Now as to the dis- 
 tinction endeavored to be taken between Maldon and Maiden, it 
 is sufficient to say, that the two words sound alike, and therefore 
 that variance is of no importance." The learned judge then pro- 
 ceeds to consider the eflTect of the words, " of the borough town," 
 stated in the declaration, instead of the technical words of ihe char- 
 ter, and comes to the conclusion that the variance was not fatal, 
 and the other judges concurred. {Doe v. Miller, 1 Barn. & Aid. 
 R. 699.) From this case it is apparent, how very technical the 
 objections to the issue in ejectmet were as late as 1818, and how 
 very technical the courts sometimes were in the disposition of those 
 objections, when raised upon the trial. Latterly, however, the courts 
 have been much more liberal in respect to variances between 
 the pleadings and the proof in the action of ejectment, and usually 
 statutes exist, allowing the plaintiff to recover according to the 
 merits of his case, although the same may happen to be different 
 in some respects from the one set out in the declaration. For 
 example, in the state of New York, where a plaintiff in ejectment 
 stated in his declaration that he had an estate in the premises for 
 
468 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the life of another, and it turned out in proof that lie had title in 
 hvcasfM hj possession, and also as guardian in socage, and the judge 
 at the circuit granted a no7isuit for the variance, the court 
 refused to set aside the nonsuit as erroneous, but let the plaintiff 
 into a new trial upon payment of costs, intimating, however, that 
 a preferable course to be pursued at the circuit in such cases would 
 be, to permit the j)laintiff to take a verdict notwithstanding a mis- 
 description of the estate or the premises claimed, and leave him 
 to apply to the court for permission to amend his declaration so 
 as to conform it to the proof. (Holmes v. Seely, 17 Wend. E. 75.) 
 
 A plea puis darrien continuance may be pleaded to the action 
 of ejectment at common law ; and indeed, when the matters of 
 defense arise after the issue is joined in the case, the same must 
 be pleaded ^Mi's darrien continuance, in order to be made available 
 on the trial. For example, a release by the nominal plaintifi" 
 pleaded puis darrien continuance is a good defense to the action 
 of ejectment, although it seems that the courts of England form- 
 erly, at least, considered stich a release as a contempt, and there- 
 fore a plea of this nature seldom or never occurred in practice. 
 {Yide Peto v. Checy, 2 Brown's E. 128. Anonymous, Salk. E. 
 260. Doe V. Brewer, 4 Maule & Selw. E. 300.) But the practice 
 of receiving such a plea in this country is well settled. The reason 
 that in England, while the common law practice in ejectment pre- 
 vailed in that kingdom, such a plea would not be accepted was, 
 that then they looked to the plaintiff on the record, and considered 
 the nominal plaintiff as the real party ; while in the American 
 states, the courts from a very early day have been in the practice 
 of considering the parties as they really are ; the lessors as the 
 parties in interest, and the nominal plaintiff as an ideal and ficti- 
 tious person ; and the courts here endeavor to practice upon the 
 maxim, as has been before stated, that fiction should do no 
 prejudice. 
 
 The question, whether a release after issue joined in an action 
 of ejectment should be pleaded puis darrien continuance, and if 
 well pleaded would be a bar to the action, was quite early before 
 the courts of New York, and was decided in the affirmative. In 
 one of the first cases that is reported, there were two lessors 
 Lathrop and Nichols. The plaintiff showed title in Nichols, and 
 rested. The defendant showed a conveyance from Lathrop to 
 Miller, the defendant's landlord, dated after issue joined. The 
 
THE PLEA PUIS DABRIEN IN EJECTHENT. 469 
 
 plaintiiF produced a deed from Lathrop to Nichols, the other 
 lessor, older than the deed to Miller, but it appeared that when 
 this last deed was executed, the defendant was in possession, hold- 
 ing adversely ; on that ground the court held that the plaintiff 
 could not I'ecover. It therefore became necessary to decide 
 whether the plaintiff could recover upon Lathrop's title notwith- 
 standing his deed to Miller. The objection was raised, that such 
 a release could not be pleaded or given in evidence, because the 
 lessor was not th* party of record ; but it was urged that it was 
 void for maintenance. The court held that even if it was an act 
 of maintenance, which they did not decide, yet it was good be- 
 tween the parties, and that Lathrop could not recover against his 
 deed, but that he was estopped by it ; that the only objection 
 which could have been made at the trial was, that it was not 
 pleaded. In the action of ejectment, they say we must look 
 steadily to the legal title. The court held that the release ought 
 to have been pleaded puis darrien continuance, so that it might 
 have been returned as parcel of the nisi jprius record ; but de- 
 cided that if a matter which ought to have been pleaded is 
 admitted in evidence by consent, it will be as effectual as though 
 pleaded, and the case was regarded in that light, and the release 
 held to defeat the action. (Jackson v. Demont, 9 Johnson's 
 E. 55.) 
 
 In a much later case in the state of New York, the defendant 
 was permitted to plead puis ' darrien continuance at the circuit 
 at which the action was moved for trial, a release by one of two 
 lessors of the plaintiff after the suit in ejectment was brought. 
 The plea was demurred to, and the court held that the same was 
 insufficient, for the reason that a release by one of two lessors of 
 the plaintiff is no bar in an action of ejectment, such release 
 affecting only the quantum of interest; but the practice of admit- 
 ting the plea puis darrien continuance was sanctioned in all cases 
 when the matter of defense arises after the issue is joined. (Jack- 
 son y. McClaslcey, 2 Wend. R. 541.) 
 
 It would seem from the marginal note in one case, that the 
 defendant would not be permitted to plead the release of the then 
 plaintiff to the defendant puis darrien continuance, but the case 
 warrants no such inference. That was a motion to be permitted 
 to plead such a release executed before the last continuance, and 
 the motion was denied on the ground that the defendant did not 
 
470 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 show by liis affidavit a sufficient excuse for not pleading the release 
 before. (Jaolcson v. Bell, 19 Johns. E. 168.) 
 
 "Where the interest of the lessor of the plaintiflf in ejectment in 
 the land claimed had been duly sold by virtue of an execution 
 before the action was brought, but the sheriff's deed Vas not exe- 
 cuted until after the issue in the cause had been joined, the court 
 held that these facts constituted a defense, and might be given in 
 evidence, under the general issue, and that the same need not be 
 pleaded puis darrien continuance. But Sutherland, J., said : 
 "That the general rule, requiring matter of defense which has 
 arisen after issue joined, to be pleaded puis darrien continuance 
 is applicable to this as well as other actions, is abundantly settled 
 in this court. {Jackson, ex dem. Golden, v. Rich, 1 Johns. 194. 
 Jackson v. Demont, 9 id. 60, per Kent, Ch. J. Jackson v. Mc 
 Connell, 11 id. 424. Jackson v. Bell, 19 id. 168.)" 
 
 The court, however, held, that, as the sale of the premises having 
 taken place before the commencement of the action, the sheriff's 
 deed would redate back to the day of sale by the sheriff; and 
 hence the defense was available under the plea of the general 
 issue. {Jackson v. Ramsey, 3 Cow. E. 75.) It was thought by 
 Judge Sutherland, who delivered the opinion of the court in 
 Jackson v. Ramsey, that the same was a case to which the doe- 
 trine of relation was peculiarly applicable, for the reason that 
 there were in the case no strangers or third persons whose interest 
 could be affected by it. The doctrine is this : " Where there are 
 divers acts concurrent to make a conveyance, estate or other thing, 
 the original act shall be preferred ; and to this the other act shall 
 have relation." (Vin. Abr. Tit. Relation, 290.) This principle 
 has been repeatedly recognized by the American courts, but the 
 authorities need not be referred to here. 
 
 "When the ancient practice prevailed in England, if the plaintiff 
 in ejectment, after issue joined, and before the trial, entered into 
 any part of the premises, the defendant at the assizes might plead 
 such entry as a plea^wis darrien continuance. Eut by the modern 
 practice the plea was considered unnecessary ; for the plaintiff, 
 being a fictitious person, could not enter the land ; and, if the 
 lessor of the plaintiff should enter, he would be unable at the trial 
 to prove the possession of the defendant, and must consequently 
 fail in his ejectment. {Moore v. Hawkins, Yelv. E. 180.) And, 
 in the state of Connecticut, it has been held, th'at, when the 
 
THE EVIDENCE IN EJECTMENT. 471 
 
 plaintiff entered into the possession of the premises pending the 
 action, this was not cause of abatement of the action of ejectment. 
 ( Venner v. Underwood, 1 Root's R. 73.) 
 
 Although the auction of ejectment is not now prosecuted as at 
 common law, either in England, or generally in the American 
 states, yet the principles laid down in this chapter are quite 
 applicable to the action as at present maintained ; and therefore 
 the common-law practice in respect to the plea of the defendant 
 and the issue in the action is explained in this place. 
 
 CHAPTER XXYI. 
 
 THE EVroENCE m THE ACTION OF EJECTMENT PEOOP EEQUIEED OF 
 
 THE CLAIMANT THE POSSESSION OF THE DEFENDANT — PROOF OF 
 
 OUSTEE, WHEN REQUIRED WHAT IS SUFFICIENT EVIDENCE OF 
 
 OUSTER. 
 
 The evidence in the action of ejectment is in many respects 
 peculiar, and varies often by reason of the position of the parties. 
 Besides, the statute sometimes declares what must be, or what 
 need not be, proved by the parties respectively in the action. 
 The common law rule with respect to the evidence in the action 
 is applicable in all cases, except when changed by a local statute, 
 which will be noted where statutes exist. It may be laid down 
 as a general proposition, that, inasmuch as the proceeedings in the 
 action of ejectment are instituted for the purpose of trying the 
 question which of the litigating parties is entitled to the posses- 
 sion of the land in dispute, the lessor of the plaintiff must prove 
 the defendant in possession of the premises which he seeks to 
 recover, or if the defendant defend as landlord, the lessor of the 
 plaintiff must prove the tenant of the defendant in possession of 
 such premises ; and further, the lessor of the plaintiff must show 
 in himself a legal title to the possession, at the time when he is 
 supposed to have made the demise stated in the declaration ; and 
 in some cases he must prove an actual ouster by the defendant. 
 The action of ejectment, with its curious and amusing English 
 fictions, is retained in but few if any of the st«tes ; and hence the 
 action is at present usually prosecuted by, and in the name of, the 
 
472 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 real party in interest. Therefore, what was formerly required to 
 be proved by the lessor of the plaintiff, is now required to be 
 proved by the plaintiff himself. 
 
 "When the old consent rule was in vogue, the defendant was 
 required to specify, in the consent rule, for what premises he 
 intended to defend, and to consent to confess upon the trial, that 
 the defendant (if he defended as tenant, or, in case he defended as 
 landlord, that his tenant) was, at the time of the service of the 
 declaration, in the possession of the premises in dispute; and if, 
 upon the trial, the defendant did not confess such possession, as 
 well as lease, entry and ouster, whereby the plaintiff was not able 
 furtlier to prosecute his suit against such defendant, then, as has 
 been before explained, no costs were allowed for not further 
 prosecuting the same, but the defendant was required to pay costs 
 to the plaintiff in that case, to be taxed. But as the action is now 
 prosecuted, unless the possession of the defendant is admitted by 
 the plea, or the statute dispenses with the proof of such possession, 
 the plaintiff will be nonsuited on the trial, if he fails to prove the 
 defendant's possession of the premises mentioned in the ejectment, 
 or at least of some part thereof. If the" defendant in possession 
 is the mere servant of another, by whose permission he entered 
 into possession, he may be turned out of possession by the right- 
 ful owner of the premises, provided he is entitled to the posses- 
 sion thereof; but it must appear in the action of ejectment, by 
 the admissions of the parties, or other proof, that the defendant 
 dispossessed the plaintiff, or was in the actual possession of the 
 land at the time the action was commenced. {Doe v. Stradling, 
 2 Stark. E. 187. Coopen^. Smith, 9 Serg. & Rawle's R. 26. Pope 
 v.^ Pendergast, 1 Marsh. R. 122. Eastin \. Pucker, 1 Marsh. R. 
 ]Sr. S. 236. Cooley v. Penfield, 1 Vt. R. 244. Stevens v. Griffith, 
 8 ib. 448.) 
 
 In some of the states statutes exist allowing the action of eject- 
 ment to be maintained against a party out of possession, who 
 claims an interest in the premises in dispute, and in such cases the 
 plaintiff is required to prove that the defendant claimed to own 
 the premises, or some interest therein as may be named in the 
 statute. 
 
 Instances may occur where persons procure themselves to be 
 made defendants ii»the action of ejectment, when the plaintiff will 
 not be required to prove the defendant in possession, and though 
 
THE EVIDENCE IN EJECTMENT. 473 
 
 such a voluntary defendant might be proved not to be in posses- 
 sion, the plaintiff may, notwithstanding, be entitled to a verdict. 
 In fact, in such a case, the defendant might be estopped from showing 
 that he was not in possession. {Ooshan v. Brenon, 2 Doe's E. 174.) 
 
 The possession of the defendant may be proved by his declara- 
 tions, his occupation of the premises, by residing thereon, or by 
 any other acts of ownership which the case affords, as receipt of 
 rent, cutting down trees on the premises, and the like. {Stanley v. 
 White, 14 East's R 333.) 
 
 "When the landlord unites with the tenant in defending the suit, 
 it is sufficient to prove the tenant to have been in possession at the 
 commencement of the suit, and his possession is deemed to be the 
 possession of the landlord. In such a case a copy of the rule of 
 court, certified by the clerk, is sufficient evidence that the landlord 
 was admitted to defend. {Jackson v. Harrow, 11 Johns. E. 434.) 
 
 In ejectment against the assignees of a bankrupt, it appeared in 
 evidence on the trial that, upon being required to yield up posses- 
 sion of the premises to the claimant, they answered that it was not 
 consistent with their duty to do so ; this was held to be sufficient 
 proof that the defendants were in possession of the premises at the 
 time of the commencement of the action, and that, therefore, the 
 action was properly brought. {Doe v. Taylor, 2 Stark. E. 535. 
 Same Case, 3 Eng. C. L. E. 463.) 
 
 The location of the premises must correspond substantially with 
 the description in the declaration or complaint. Thus, where the 
 premises were described in the declaration as situate in two parishes 
 which were united only for the purpose of maintaining their poor, 
 the variance was held fatal. {Goodtitle v. Lammiman, 2 Camp. 
 E. 274. Vide Doe v. Welsh, 4 ib. 274.) But where the lands 
 were stated to be situate in the parish of A and B, which were 
 distinct parishes, the demise was considered, upon a motion for a 
 new trial, as of lands situate partly in one and partly in the other 
 parish. {Ooodtitk v. Walter, 4 Taunt. E. 671.) And where the 
 premises were laid in the declaration to be in the parish of Farn- 
 ham, and at the trial before Heath, J., at Buckingham, were 
 proved to be in the parish of Fai-nham Eoyal, which was con- 
 tended to be a fatal variance, the learned judge said, that unless 
 the defendant could prove that there were two Farnhams, he 
 should direct a verdict for the plaintiff; and no such proof being 
 offered, the plaintiff recovered accordingly; and the court of 
 60 
 
474: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 king's bench held the direction of the learned judge at nisi prius 
 to be right. {Doe v. Salter, 13 East's E-. 21.) The question in 
 respect to a variance between the declaration and the proof in the 
 action of ejectment is disposed of upon the same principles as the 
 same would be in other cases, and the courts are very much more 
 liberal in allowing amendments, or in overlooking and disregard- 
 ing variances which are not calculated to mislead or tend to the 
 prejudice of the party than formerly. And although the plaintiif 
 must prove the locality of the premises claimed substantially as 
 described in the complaint or declaration, still, after the plaintiff 
 has established his title to a verdict, the court will not try the 
 extent of his claim, as defined by pai-ticular metes and bounds 
 {Doe V. Wilson, 3 Stark. R. 477. And vide Rex v. Olossop, 4 Barn. 
 & Aid. E. 619. Doe v. Harris, 5 Maule & Selw. E. 326. Kirt- 
 land V. Pownsett, 1 Taunt. E. 570.) 
 
 In an action of ejectment, the true location of the lands in dis- 
 pute is a question for the jury to determine from the evidence 
 adduced, and it is their duty to find the location where they are of 
 opinion tlie lines were originally run, allowing for the variation of 
 the needle, and the rate of such variation, unless they find that the 
 party is prevented by some agreement, by adverse possession, oi 
 by some other legal bar, from availing himself of the original 
 location. {Shields v. Miller, 4 Harris & Johnson's E. 1. How- 
 ard V. Cromwell, 1 ib. 115. Helms v. Howard, 2 Harris & Mo- 
 Henry's E. 57.) 
 
 But the construction of written evidence is exclusively with the 
 court, and where the evidence is undisputed the constrnction of 
 the description of the premises is for the court and not for the 
 jury. {Levi v. Gadsby, 3 Cranch's E. 180. St. John v. Bum,p- 
 stead, 17 Barb. E. 100.) No principle is more clearly settled than 
 this, as a general rule, and the doctrine is peculiarly applicable in 
 the action of ejectment, where the question relates to an alleged 
 variance between the declaration and the proof, although the sub- 
 ject of houndary would seem to be a question for the jury, under 
 proper instructions from the court, and whether a particular piece 
 of land is included within the description mentioned, if the 
 boundaries are in dispute, is held to be a question for the jury. 
 {Pettingill v. Porter, 3 Allen's E. 349.) What are the boundaries 
 of a given piece of land conveyed by a deed, is a question fcr tho 
 court; but where these boundaries arc is a question for the jury. 
 
THE EVIDENCE IN EJECTMENT. 4Y5 
 
 {Abbott V. Abhott, 51 Maine R. 581. And vide OpdyTce v. Stej^hens, 
 4 Dutch. E. 90.) 
 
 In an action of ejectment in the supreme court of the United 
 States, the declaration described the property for which the action 
 was instituted as " lying between Water street and the river 
 Monongahela, with the appurtenances, situate and being in the 
 city of Pittsburgh ; " i\e jury found a general verdict for the 
 plaintiff; the court held the verdict to be sufficiently specific, and 
 decided that the question of boundary is always a matter of fact 
 for the determination of the jury. {Barclay v. HoweWs Lessee, 
 6 Peters' E. 498.) 
 
 The title proved must not be inconsistent with the demise laid 
 in the declaration. If the lease is a joint-lease from several per- 
 sons, they must be proved to have had such an interest as would 
 enable them to join in a demise of all the premises in question. 
 Thus, where the plaintiff declared on a lease made by two, and it 
 appeared on the trial that one of the lessors was tenant for life, 
 and the other had the remainder in fee, so that they could not join 
 in a present demise, the plaintiff failed. {Treport^s Case, 5 Coke's 
 E. 14.) But it has been held, that the plaintiff in ejectment, under 
 the several demises of two, may, after notice to quit, recover the 
 possession of premises held by the defendant as tenant from year 
 to year, upon evidence that the common agent of the two had 
 received rent from the tenant which was stated in the receipts to 
 be due to the two lessors ; even assuming such receipts to be 
 evidence of a joint-tenancy ; for a several demise severs a joint- 
 tenancy ; and supposing the contract with the tenant to have been 
 entire, no objection lies on that account to the plaintiff's recovery 
 in such case, as he would have the whole title in himself. {Doe v. 
 Bead, 12 East's E. 57.) And it has been held, in several other 
 cases, that the plaintiff may declare on the several demises ot 
 joint-tenants, and recover on proof of such several demise, for the 
 reason that the letting severs the joint-tenancy. {Doe v. Fenn, 
 3 Camp. E. 190.) 
 
 In ejectment brought upon the joint-demise of several trustees 
 of a charity, it has been held not enough for the defendant who 
 had paid one entire rent to the common clerk of the trustees, 
 to show that the trustees were appointed at different times, as ' 
 evidence that they were tenants in common ; for, as against their 
 tenant, his payment of the entire rent to the common agent of all 
 
476 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is, at all events, sufficient to support the joint-demise, without 
 making it necessary for them to show their title more precisely. 
 {Bob v. Grant, 12 East's K. 221.) 
 
 By the fictitious proceedings in the action of ejectment under 
 the common law practice, the defendant, the party in possession, 
 was admitted to defend, on condition of his entering into a rule to 
 confess, at the trial of the cause, the lease of the supposed lessor of 
 the plaintifi', the plaintiff's entry, and ouster. These were the 
 usual terms on which he was admitted to defend. But under the 
 common law practice, and the practice usually recognized in 
 the action at the present day, if the defendant is tenant in com- 
 mon, or joint tenant, or partner, with the lessor of the plaintiff, or 
 the plaintiff himself, in which cases, since the possession of the de- 
 fendant \s, prima facie, the {)ossession of all the co-tenants, an actual 
 ouster must be proved. And this ouster must be proved by other 
 means than the consent rule ; as by showing that the defendant 
 held adversely, or that he denied the title of the other co-tenants, 
 or claimed the whole of the premises for himself, or denied posses- 
 sion to the others ; or had the sole and undisturbed possession for 
 a long course of years without payment of rent, and without any 
 claim of any part of the profits by the other co-tenants during the 
 whole of the time. ( Vide Frederick v. Gray, 10 Serg. & Rawle's 
 R. 182. Lodge v. Patterson, 3 Watts' E. 77. McHaffy v. DoUiy 
 9 ib. 363. Bolton v. Hamilton, 2 "Watts and Serg. E. 294. Lord 
 V. Patterson, 1 ib. 191. Doe v. Prosser, Cowp. E. 217.) But tie 
 receipt of the whole rent is equivocal ; and a refusal to account is not, 
 of itself, sufficient evidence of an ouster, without denying the title. 
 This was the doctrine laid down by Lord Mansfield in the case of 
 Doe V. Prosser, supra, in which the exclusive possession was for a 
 period of thirty-six years, and the jury presumed an actual ouster 
 in favor of the defendant. And in one case it was held that the 
 receipt of rent for the period of twenty-six years did not prove an 
 ouster, and the question in the case was not even submitted to the 
 jury. Of course, the possession was not adverse, because if it had 
 been, the English statute of limitations would have run, and the 
 defendant would have succeeded in the case on that plea. {Fair- 
 claim V. ShaoUeton, 5 Burr. E. 2604, 2608.) 
 
 One tenant in common in possession, claiming the whole, is 
 beyond the mere act of receiving the whole rent, which is equivo- 
 cal ; and therefore where the tenant in possession claims the whole 
 
TBE SriDENCE IN EJECTMENT. 477 
 
 interest exclusive of his co-tenant in common, it is an ouster. And 
 a demand of possession by one tenant in common, and the refusal 
 by the other in possession, is evidence of an actual ouster of his 
 companion. {Doe v. Bird, 11 East's E. 49. Sigler v. Van Biper, 
 10 Wend. E. 416.) And it has been held that in an action for the 
 recovery of land, brought against a co-tenant in common, the 
 denial in the answer of all right, title and interest of the plaintiff 
 in the land is a confession of ouster. This was under the New 
 York practice, where the rule may be considered as somewhat 
 peculiar. It was . decided, however, that in such an action it is 
 sufficient for the plaintiff, at the outset, to show that the defend- 
 ant's entering into possession was under a claim hostile to the 
 rights of the plaintiff, as, where the entry was under an expired 
 lease. {Glason v. Ranlcin, 1 Duer's E. 337.) This question is 
 often regulated by statute. The doctrine, however, is well settled, 
 that at common law, one tenant in common cannot maintain eject- 
 ment against his co-tenant, without proving that the defendant 
 actually ousted him, or did some other act amounting to a total 
 denial of his right as co-tenant ; and the denial must amount to a 
 disseisin, or suffice to establish an adverse possession. This rule is 
 not usually varied or modified by statute. In one case in the state 
 of New York, the defendant, who was a tenant in common with 
 the plaintiff of the title, " admitted himself to be in possession, 
 claiming the premises in question as owner in fee thereof under a 
 quit-claim deed" from a grantor who had owned an undivided 
 share, and which deed purported to reraise, lease, and forever quit- 
 claim unto the defendant, his heirs and assigns forever, the same 
 premises, describing them by metes and bounds ; and the court 
 of appeals held, that the defendant was not guilty of any ouster 
 or denial of his co-tenant's right, so as to subject him to an action 
 of ejectment. By claiming title under such a deed merely, the 
 defendant, it seems, only asserted his right to the share which his 
 grantor had, and not to the whole premises. {Edwards v. Bishop, 
 4 N. Y. E. 61.) But in another case . decided by the old 
 supreme court of the state of New York, the defendant held 
 under a title derived from five of the heirs of one Fish. The 
 defendant claimed the whol6 premises as his own, had offered to 
 sell them, and being told that all the heirs had not signed his deed, 
 he said they had received their share of the consider atio7i, and he 
 thought equity would compel them to sign it. This was held to 
 
478 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 amount to a denial of the right of the plaintiffs, who, as heirs of 
 Pish, -were entitled to four-ninths of the property. {Valentine v. 
 Northrojp, 12 Wend. R. 494.) And in the state of Connecticut, it 
 has been held that where one tenant in common is in possession 
 of the estate, claiming to hold it by a deed covering the whole of 
 it, it is sufficient evidence of ouster to support ejectment by a 
 co-tenant. {Glarlc v. Vaughan, 3 Conn. E. 191.) And in the 
 state of North Carolina, the refusal of a tenant in common to 
 admit the right of his co-tenant subsequent to the demise laid, is 
 held to be a sufHcient ouster, or adverse possession, to infer an 
 ouster at the time of the demise. (liargrave v. Powell^ 2 Dev. 
 & Batt. E. 97.) 
 
 The law presumes, till the contrary is shown, that a man in pos- 
 session without title intends to hold for the true owner; in other 
 words, that he intends to hold honestly, so far as he can con- 
 sistently, with holding at all. So, if he have a title as tenant in 
 common, he is presumed to hold for himself and his co-tenants, 
 and if it is alleged that his possession is adverse or exclusive, the 
 plaintiff must show it by actual proof, or show that it is admitted 
 by his adversary in pleading. Although a man who may hold pos- 
 session rightfully as a tenant in common, presumptively refers 
 himself to that right ; yet the contrary may be shown ; and if his 
 conduct be such as to satisfy the mind that he means to hold out 
 his co-tenants, and actually exclude them, this is an ouster. {Su- 
 lert V. Trinity Church, 24 Wend. E. 587.) 
 
 Where there had been a dead silence in the co-tenants out of 
 actual possession for nearly forty years, without any other evidence 
 of an exclusive claim by the tenant in possession, the fact was sub- 
 mitted to the jury as ground of presuming an ouster, and a verdict 
 founded on the presumption was sustained. {Doe v. Prosser, 
 1 Cowp. E. 217.) But possession of twenty-seven j^ears by one 
 tenant in common, although during all that time the right of the 
 co-tenant had not been recognized, was held by the old supreme 
 court of the state of New York not to be sufficient to authorize a 
 jury to presume an oustei', where, before twenty-five years had 
 elapsed, the co-tenant had made an actual entry upon the land, and 
 was forcibly expelled. The ease was. considered to come entirely 
 short of the protracted and exclusive possession oi Doe v. Prosser, 
 with the unbroken silence appearing in that case. The lapse of 
 time was there considered very great, and the silence entirely 
 
TBE EVIDENCE IN EJECTMENT. 479 
 
 unaccounted for. But here the possession barely exceeded twenty- 
 five years ; and there was at least one very decisive step toward a 
 claim, an actual entry under claim of title within that time. The 
 court was not, therefore, prepared to admit that the judge at nisi 
 prius was bound under such circumstances to leave the question 
 of a har iy adverse possession to the jury ; and it was, in fact, held 
 that the possession proved did not amount to an ouster. {North- 
 rop V. Wright, 24 Wend. R. 221.) 
 
 In a case decided by the old court of errors of the state of l^ew 
 York, it was substantially held that where one tenant in common 
 has exercised a right over the property held in common, inconsistent 
 with the rights of his co-tenant, for more than twenty years, an 
 actual ouster of the co-tenant may be presumed for the purpose of 
 barring the right by adverse possession ; but no such presumption 
 can arise where the right exercised is consistent with the right of 
 the co-tenant. The action in the supreme court was ejectment by 
 two tenants in common to recover two-thirds of certain ore lands 
 in possession of parties representing the remaining one-third, and 
 there was little or no evidence of an ouster except a long possession 
 of the premises by the defendants and those under whom they 
 claimed. The supreme court held that there was no sufficient 
 evidence of an ouster, and the decision was affirmed by the court 
 of errors. The chancellor who delivered the opinion of the court, 
 among other things, said : " In the ease under consideration, if 
 either party had opened and worked the ore beds for twenty years, 
 without paying to the other party his or tlieir share of the value 
 of the ore in the ground, or otherwise accounting to him or them 
 for the same, or acknowledging tlje rights of the co-tenant, an 
 ouster of the co-tenant, or a release of his or their interest in the 
 ore bed, might be presumed ; but if neither party should think fit 
 to open and work the ore bed, or if one of them should work it 
 exclusively, paying the other his sliare of the value of the ore dug, 
 or admitting his liability to pay for the same, no such presumption 
 of ouster or of a release could possibly arise, as there would be 
 nothing upon which the presumption could be founded." {Butler 
 V. Phelps, 17 "Wend. E. 642, 647.) 
 
 The cases are numerous to establish the principle that when 
 one tenant in common has exercised a right over the property 
 held in common wholly inconsistent with the rights of liis co- 
 tenant for more than the time limited by statute for bringing an 
 
480 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 action to recover the premises, an actual ouster of his co-tenant 
 may be presumed for the purpose of barring such right by adverse 
 possession. But if the authorities go no further than this, it is 
 very obvious that a simple iiolding possession of the common 
 property by one of the tenants in common, and the exercise of a 
 right over the same inconsistent with the right of his co-tenant, 
 will never justify the bringing of an action of ejectment against 
 the' tenant in possession, for the reason that such possession and 
 exercise of right will not amount to an actual ouster unless the 
 same have continued long enough to constitute the statutory bar 
 bj' adverse possession, and if so, then the action is barred, and 
 cannot be maintained on that account. It is therefore quite clear 
 that it will not be safe for one tenant in common to bring his 
 action relying upon a long and continued possession by his co- 
 tenant as' sufficient evidence of ouster. He must alwaj'S be able 
 tO show that he has been actually excluded from the premises or 
 Kept out of the possession by his co-tenant ; or that the defendant 
 in possession has done some other act amounting to a total denial 
 of his right by such co-tenant. To constitute an ouster, there 
 must be an intention to obtain an adverse possession, and unless 
 that is manifest, or the right of the co-tenant is actually and 
 totally denied, the action of ejectment by one tenant in common 
 against his co-tenant can never be maintained. 
 
 Where one takes an absolute conveyance from a tenant in com- 
 mon, conveying in terms the whole estate, and enters into posses- 
 sion under such conveyance, the presumption of law is that he 
 entered in severalty, claiming the whole land adversely to the 
 whole world ; but unless, on having notice of the right of the co- 
 tenant of his grantor, he actually makes such claim as against 
 him, or does that which is tantamount to such a claim, it will not 
 be sufficient upon which to predicate a claim of ouster for the 
 purposes of ejectment. Such a holding of possession under such 
 a claim, if continued long enough, may be sufficient to found the 
 defense of adverse enjoyment upon ; but that alone will not be 
 sufficient to justify the action of ejectment by the co-tenant. It 
 is probable, however, that if one should enter upon land, under a 
 deed in terms conveying the whole in fee executed by one of two 
 or more tenants in common, well knowing the rights of such 
 tenants in common, and then claim the whole land as against all 
 the world, the same would be regarded as an actual ouster of the 
 
TBE EVIDENCE IN EJECTMENT. 481 
 
 tenants out of possession ; althongh even in that case it would be 
 well to demand the possession before bringing the action. ( Vide 
 Bogardm v. Trinity Church, 4 Sandf Oh. R. 633.) 
 
 As has been before stated, the possession of one tenant in com- 
 mon, eo nomine, as tenant in common, can never bar his com- 
 panion, because such possession is not adverse to the right of his 
 companion, but in support of their common title ; and by paying 
 him his share, he acknowledges him co-tenant. iN^or, indeed, is a 
 refusal to pay, of itself, sufficient, without denying his title. But 
 if, upon demand by the co-tenant of his moiety, the other refuses 
 to pay, and denies his title, saying he claims the whole, and will 
 not pay, and continues in possession, it has been determined by 
 great authority that such posseession is adverse and ouster enough. 
 {Doe V. Prosser, 1 Cowp. U. 218.) And where a person enters 
 generally, without making any declaration of his intention, the 
 law presumes that he enters by his legal title ; but if he saj's that 
 he enters to exclude others having the same title with himself, or 
 if he does an act showing an intention to keep them out, he is an 
 abator, as much as a stranger would be, and his possession is an 
 ouster. {Shumway v. HolhrooJc, 1 Pick.-E. 11 Y.) 
 
 So, in an early case in the Massachusetts reports, it appears from 
 the marginal note, as deduced from the opinion of the court, that 
 one tenant in common hindering the entry of another is an ouster. 
 {Gordon v. Pearson, 1 Mass. R. 323.) And where the owner of 
 an undivided part of a parcel of land gave a deed of the whole 
 parcel, and the grantee entered under the deed, and afterward a 
 creditor of the grantee levied upon the whole parcel, and entered 
 under his levy, claiming to be sole owner of the land, it was held, 
 by the supreme judicial court of Massachusetts, that the co-tenant 
 of the maker of the deed was disseised, and, of course, ousted. 
 {Bigelow v. Jones, 10 Pick. R. 161. And vide Kitbredge v. Locks 
 and Canals, 17 ib. 247. Van Dyck v. Van Beuren, 1 Caiues' 
 R. 84.) 
 
 Where a tenant in common in possession moves away and leaves 
 the premises vacant, and another takes possession, the latter will 
 be presumed to have entered in subordination to the former title, 
 unless the contrary is proved. But where a person enters upon 
 premises as purchaser under a judgment and a claim of right, that 
 is a disseisin. {Fosgate v. The fferhimer Manufacturing and 
 Hydraulic Company, 9 Barb. R. 287.) 
 61 
 
482 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 So, in a later case thin Oordon v. Pea/rson, in the state of Mas- 
 sachusetts, where one of two tenants in common conveyed the half 
 of the land occupied by him, including the demanded premises, 
 to the tenant, with warranty, and the tenant entered, claiming 
 title under the deed, and continued in possession six or seven years, 
 when the other tenant in common claimed of the tenant in posses- 
 sion his share of the demanded premises, and requested the tenant 
 to yield it up. But the tenant refused, and declared that he would 
 stand a law-suit first. The court held this, upon authority, to 
 amount to an ouster, and declared that the co-tenant out of pos- 
 session could well maintain his writ, of entry. And, in the same 
 case, the court decided, that, by pleading nul disseisin, the tenant 
 admits the fact of disseisin, and puts the title in issue. {Marcy v. 
 Marey, 6 Mete. E. 360.) This last position of the court is proba- 
 bly in accordance with the Massachusett's practice ; although nul 
 disseisin is a plea that there was no disseisin, and is a species of 
 the general issue, and therefore usually puts in issue the fact 
 of the ouster. But the case may be regarded as binding authority 
 and of general application. 
 
 In a writ of entry, the question being on the fact of ouster by 
 the defendant, and it appearing that he held a deed of the land, as 
 security for a debt, given to him by a third person, who continued 
 in possession, but under no certain agreement as to time or amount 
 of rent, the defendant intending to take the land into his possession 
 whenever he should thinlc proper — this was held to be insufficient 
 evidence of an ouster. {Jordan v. Sylvester, 7 Greenl. R. 337.) 
 
 CHAPTER XXVII. 
 
 THE EVIDEMOE IN THE ACTION OP EJECTMENT THE TITLE OF THE 
 
 CLAIMANT, HOW PROVED WHEN NO PKIVITY EXISTS BETWEEN 
 THE PAETIES — THE CLAIM BY DESCENT. 
 
 In all cases where the title of the real plaintiff in the action of 
 ejectment is controverted under the general issue, or other plea 
 which puts in issue the title of the plaintiff, he must prove that 
 he had the legal estate in the premises claimed, at the time of the 
 demise laid in the declaration. 
 
THE EVIDENCE IN EJECTMENT. 483 
 
 There are cases in wliich the title of the claimant in ejectment 
 cannot be controverted by the defendant. These cases will be 
 considered hereafter. In this and the three following chapters the 
 subject of the evidence of the title of the claimant where no 
 privity exists between the parties will be examined. 
 
 And iirst, let us consider the evidence of the title of the claim- 
 ant, where he claims by descent, as heir at law of the person last 
 seised. And here it may be affirmed in general terms, that when 
 the party claims by descent, he must prove that the ancestor from 
 whom he derives his title was the person last seised of the lands, 
 and that he, the claimant, is his heir. (Coke on Litt. 11, 5. 
 Jenkins v. Pritchard., 2 Wils. R. 45.) . 
 
 If he claims as collateral heir, he must prove the descent of 
 himself, and the person last seised, from some common ancestor, 
 together with the •extinction of all those lines of descent which 
 would claim before him, and it may be laid down as a general pro- 
 position that, in all cases of heirs bringing ejectment against the 
 tenant of their ancestor, they are presumed to have succeeded to the 
 estate of their ancestor. An outstanding title must be a present 
 and operative one, otherwise the presumption will be that it has 
 become extinguished, and if the plaintiff show a good title, the 
 presumption of the extinguishment of the outstanding title ought 
 to be liberally indulged. {Vide Brandt v. Livermare, 10 Jolms. 
 E. 358. Jackson v. Todd, 6 ib. 257. Jackson v. Hudson, 3 ib. 
 375.) But it is indispensable to prove that the ancestor was 
 seised. 
 
 The seisin of the ancestor may be proved by showing that he 
 was either in the actual possession of the premises at the time of 
 his death, or in the receipt of rent from the terre-tenant; for pos- 
 session is presumptive evidence of a seisin in fee until the contrary 
 is made to appear. This has been hereinbefore abundantly shown, 
 and the authorities need not be referred to here. ( Vide ante, eh. 
 4.) But this presumption may be rebutted on the part of the 
 defendant ; in which case the claimant will be required to produce 
 other evidence of his ancestor's title. The declarations of a 
 deceased occupier of the land in question, that he held as tenant 
 under a particular person, have been admitted as evidence of the 
 seisin of that person. {Peaceable v. Watson, 4 Taunt. E. 16.) 
 But more in respect to the competency of the declarations of 
 deceased persons in another place. 
 
4:84 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 It is not necessary that the possession should be gained by the 
 actual entry of the very person in wliom the seisin is alleged. It 
 may be gained by the entry or possession of the guardian, and the 
 guardian need not have been formally assigned. If a stranger 
 enter into the lands of an infant, he will be considered as entering 
 as guardian; and the entry of such person will make apossessio 
 jpatris, so as to answer the maxim j>ossessioj)atrisfaGit sororem esse 
 hmredem — "the brother's possession makes the sister the heiress." 
 ( Vide "Watkius on Descents, 64. Co. Litt. 89. Morgan v. Morgan, 
 1 Atkyn's E. 489. Dormer v. Fortesoue, 3 ib. 130. Doe v. Keen, 
 Y Term E. 386.) So the possession may be gained by the posses- 
 sion of the ancestor's lessee for years of the person in whom the, 
 seisin is alleged, or his tenant by elegit ; and this, though the heir 
 dies before the day of payment. And it seems that an heir maj' 
 gain a seisin by making a lease at will, or for years, before his own 
 entry. (Watkins on Descents, 65. BushleyY. Dixon, 3 Barn. & 
 Ores. E. 298. Co. Litt. 15, a.) And a seisin may be gained by 
 the entry of a coparcener, joint-tenant or tenant in common ; or 
 by the entry of a person entering in the name of him who is enti- 
 tled to the land, though without a precedent command or subse- 
 quent assent. ( Vide Smales v. Dale, 1 Hobart's E. 120. Co. Litt. 
 245, a, 258, a) 
 
 TJiere can be no mesne seisin of a remainder or reversion, expect- 
 ant on an estate of freehold, while such a remainder or reversion 
 continues in a regular course of descent. But as it may be sold, 
 devised, or charged by the person entitled to it, the descent of it 
 may be changed by the execution of certain acts of ownership, as, 
 by granting it over for a term of life, or in tail ; the execution of 
 such acts of ownership being equivalent to actual seisin of an estate 
 which is capable of being reduced into possession by entry. "With 
 respect, therefore, to the proof of a title by descent to a remainder 
 or .reversion expectant on an estate of freehold, the claimant must 
 prove himself heir to the person originally seised of the entire fee 
 simple, and who created the particular estate of freehold ; or to the 
 person in whom the remainder or reversion first vested by purchase ; 
 or in case acts of ownership have been exercised of the nature before 
 alluded to, to the person by whom, or in whose favor acts of owner- 
 ship over the remainder or reversion in question have been last 
 exerted. (Watkins on Descents, 137, 151.) 
 
 After the seisin of the party from whom the plaintiff claims, it 
 
• TEE EVIDENCE IN EJECTMENT. 485 
 
 must in the next place be shown either that the claimant is lineally- 
 descended from him, or, if he claims collaterally, that they are both 
 of them sprung from the same common ancestor ; at least, it must 
 be shown that the claimant and the deceased were descended from 
 brothers or sisters. {Roe v. Lord, 3 W. Black. K. 1099. Jenkins 
 V. Pritohard, 2 Wils. R. 45.) And when he claims as collateral 
 heir, as before intimated, it must be furtker shown that all the 
 branches interposed between the claimant and the ancestor, which, 
 if in existence, would have a preferable title, are extinct. 
 
 In ejectment the lessor of the plaintiff claimed as heir by descent, 
 and showed the death of his elder brothers, but did not prove that 
 they died without issue. The court said : " This must likewise be 
 proved. The plaintiff must remove every possibility of title in 
 another person before he can recover: no presumptive being to be 
 admitted against the person in possession." {Richards v. Richards, 
 15 East's R. 294, note.) But proof by one of a family that many 
 years before a younger brother of the person last seised had gone 
 abroad, and that the repute of the family was that he had died 
 there, and that the witness had never heard in the family of his 
 haying been married, the court of king's bench held prima facie 
 evidence that the party was dead without lawful issue, and noth- 
 ing appearing to the contrary, was sufficient to entitle the next 
 elaima,nt by descent to recover in ejectment. Lord EUenborough, 
 C. J., remarked that the evidence was sufficient to call upon the 
 defendant to give ^wwa/bsCTe evidence, at least, that the deceased 
 brother of the person last seised was married ; and asked, " what 
 other evidence could the lessor be expected to produce that he was 
 not married, than that none of the family had ever heard that he 
 was." {Doe v. Griffin, 15 East's R. 293.) Here it will be observed 
 was negative evidence of the marriage of the person in question, 
 which was not the case in Richards v. Richards, referred to in the 
 note to the principal case. 
 
 To establish the fact of the pedigree of the claimant, the register 
 of births, marriages and burials is competent evidence ; and wher- 
 ever an original is of a public nature, and admissible in evidence, 
 an examined copy will be equally admitted. This rule is necessary, 
 as well for the security of the instrument, as for the convenience 
 of the public. 
 
 Parish registers and the register of man-iages and births kept in 
 the records of a town are evidence of pedigree and heirship ; that 
 
486 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is to say, they are evidence of what they purport to record, namely, 
 that certain persons therein described were baptized, married or 
 Duried at a particular time or place ; but they are not evidence of 
 any other facts inserted in them, as of the time or place of birth 
 of an infant. The general rnlei is, that when the litigation 
 involves an inquiry into facts which must have transpired, if at 
 all, beyond the reach q£ memory of the living, statements of his- 
 torians, recitals in public records, in statutes, and legislative jour- 
 nals, the proceedings in courts of justice, their averments and 
 results, are, from necessity, admissible, but with great caution and 
 due allowance ; and historical evidence is restricted to facts of a 
 public and general nature. {Bogardus v. Trinity Church, 4 Sandf. 
 Ch. E. 633. Jackson v. Boiieham, 15 Johns. E.. 226.) In the 
 case of Jaclcson \. Boneham, a sworn copy of the records of the 
 town of Stonington, which contained the date of the marriage of 
 the parents of the lessors, and the time of the birth of their 
 children, was admitted. In the opinion delivered, Thompson, 
 C. J., says : " "We do not perceive any objection to the admission 
 of a sworn copy of the records as evidence of the family." 
 
 An official registry of marriages kept in a church by the clergy- 
 man ministering there, or, in case no sucli registry is kept, a private 
 memorandum, in which the minister, in the ordinary course of liis 
 business, has entered, or intended to enter, as it occurred, each 
 marriage celebrated by him, seems to be admissible on a question 
 whether such minister ever did or did not celebrate a particular 
 marriage. {BlacTcium v. Crawfords, 3 Wall. U. S. E. 175.) 
 
 Entries in family bibles are admitted in cases of pedigree ; but 
 such entries are not evidence, if recently made, and the person 
 who made them is in court. They are only received when there 
 is no living witness who can speak to the recorded fact. {Leggett 
 V. Boyd, 3 "Wend. E. 379. Fosgate v. Herhimer Manufacturing 
 'and Htjdraulic Company, 12 Barb. E. 352, 359.) And it has been 
 held, that a notice in a newspaper, published in the state of New 
 York, of the death of a person in Texas, is no evidence of his 
 death. Only a year and a half had expired, however, between 
 the date of the newspaper and the trial on which it was offered as 
 evidence ; and the court stated, that there was no diflBculty in 
 proving the fact of the death of the individual, if true, by exe- 
 cuting a commission and examining the widow. {Fosgate v. Ser- 
 Ttimer Manufacturing and Hydraulic Company, 9 Barb. 287, £95.) 
 
THE EVIDENCE IN EJECTMENT. 487 
 
 J'br the purpose of raising a presumption or proving a pedigree 
 in an action for the recovery of lands by recitals contained in an- 
 ancient instrument, the 'probate of a will as a will of personal 
 estate, or the record thereof in the proper office, is admissible in 
 evidence. And inscriptions upon tombstones, entries in bibles 
 and other religious books in the handwriting of persons whose 
 writing is unknown, arc sometimes resoi'ted to for the purpose of 
 establishing pedigree. ( WhiflocTc v. BaTcer, 13 Vesey's E. 514. 
 8laney v. Wade, 7 Sim. R. 595. Ilqod v. Beauchamp, 8 ib. 26. 
 liussell V. Schuyler, 22 "Wend. R. 237.) 
 
 The marriage of parties and the birth of their offspring may be 
 proved, like anj^ other fact, by direct proof from witnesses who 
 were present at the nuptials or birth. And in respect to marriage 
 for the purpose of establishing pedigree, the same may be proved 
 by cohabitation as husband and wife, reputation, and the like. 
 The acts and declaration of a man and woman, and other attend- 
 ing circumstances during their cohabitation together, being a part 
 of the res gestm, are proper evidence to show the character of their 
 intercourse, whether it was matrimonial or meritricious. (Harman 
 V. Harman, 16 111. R. 85. Henderson v. Gargill, 31 Miss. R. 367. 
 Ford V. Ford, 4 Ala. R. 142. Thorndell v. Morrison, 25 Penn. 
 R. 326. Kenyon v. Ashhridge, 35 ib. 157. In the matter of Taylor, 
 9 Paige's Ch. R. 611. Eose v. ClarJc, 8 ib. 574. Kahl v. Kraner^ 
 7 B. Mon. R. 130. Jenhins v. Bisbee, 1 Edwards' Ch. R. 377. 
 Tilts V. Foster, Taylor's R. 121. And vide Evans v. Morgan, 
 2 Cromp. & Jerv. R. 453.) But, although the parties cohabit 
 together, and, as regards society, hold themselves out as husband 
 and wife, and other facts indicative of wedlock have been sworn 
 to by witnesses, a court or jury may find that the cohabitation was 
 illicit, and that no valid marriage had taken place. {Robertson v. 
 Crawford, 3 Beavan's R. 102.^ Same Case, 43 Eng. Ch. R. 101. 
 Blaclcburn v. Crawfords, 3 "Wallace's TJ. S. R. 175-.) Still, the 
 general and ordinary presumption of the law is in favor of inno- 
 cence, in questions of marriage and legitimacy, where children are 
 concerned. Cohabitation is presumed to be lawful until the con- 
 trary appears, and moreover, in cases of conflicting presumptions 
 on the subject of marriage and legitimacy, that in favor of inno- 
 cence must prevail. {Physick's Appeal, 4 Am; Law Reg. 'N. S, 
 418, 423, 424. Sensor v. Bower, 1 Penn. R. 450. Hill v. HiWa 
 Admrs., 32 ib. 511, Vide also Starr v. Peck, 1 Hill's E. 270) 
 
488 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 "Where there is no proof of actual marriage, it seems that 
 cohabitation and reputation are necessary to ground a presump- 
 tion of marriage ; proof of cohabitation alone is not sufficient. 
 Eeputation must also be proved, -which consists of the speech of 
 the people who have an opportunity to know the parties, to be 
 proved by them. It seems, further, by the same case, that mar- 
 riage is in law a civil contract, not requiring any form of solem- 
 nization before officers of church or state, but it must be evidenced 
 by words in the present tense, uttered for the purpose of estab- 
 lishing tlie relation of husband and wife, and should be proved by 
 the signature of the parties, or by witnesses present when it was 
 made. {Commonwealth v. Stromp^ 7 Am. Law Keg. N. S. 61. 
 Same Case, 53 Penn. E. 132.) It has been well remarked by an 
 eminent judge, that "tfee coliabitation of persons as husband and 
 ■wife, without mai-riage, is too frequent to need comment; and con- 
 fessions of marriage in all such cases, whether a marriage in fact 
 has taken place or not, may be expected to justify the conduct and 
 screen the offenders from censure and punishment. Unlike con- 
 fessions in ordinary cases, made against one's intei-est, these are 
 not unfrequently prompted from the most selfish motives." {TAe 
 State V. lioswell, 6 Conn. K. 446, 451.) This only proves that 
 this character of evidence should be received with great caution 
 and care. 
 
 ,But it is well settled that, upon all questions of genealogy, and 
 generally upon questions relating to births, marriages and deaths, 
 in the absence of higher evidence, resort may be had to what is 
 commonly said and understood to be true among the immediate 
 relations and family connections of the party to whom the inquiry 
 relates. {Clarh v. Owens, 18 IST. Y. E. 434.) And the declarations 
 of deceased members of the family, whether relatives or connections 
 by marriage, are admissible evidence to prove relationship, deaths 
 or marriages ; but the declarations of servants or intimate acquaint- 
 ances are not received for this purpose. {Johnson v. Lawson, 2 Bino-. 
 R. 90.) Declarations upon matters of pedigree are admitted, though 
 made by persons in j)ari jure with the party using them ; but thev 
 may be objected to if they were not made ante litem motam. Said 
 Le Blanc, J. : " On inquiring into the truth of facts which happened 
 a long, time ago, the courts have varied from the strict rules of 
 evidence applicable to facts of the same description happening in 
 modern times, because of the difficulty or impossibility by lapse of 
 
THE EVIDENCE IN EJECTMENT. 489 
 
 time of proving these facts in the ordinary way by living witnesses.- 
 On this ground, hearsay find reputation (which latter is no other 
 than the hearsay of those who may be supposed to have been 
 acquainted with the fact handed down from one to another) have 
 been admitted in evidence in particular cases. On that principle 
 stands the evidence in cases of pedigree, of declarations of the family 
 who are dead, or of monumental inscriptions, or of entries made by 
 them in family bibles," and the law of the case in which these obser- 
 vations were made, as stated in the head-note, is : " If a person have 
 peculiar means of knowing a fact, and make a declaration or writ- 
 ten entry of that fact, which is against his interest at the time, it 
 is evidence of the facts as between third persons after his death, 
 if he could have been examined to it in his life-time. And, there- 
 fore, an entry made by a man-midwife in a Ipok of having delivered 
 a woman of a child on a certain day, referring to his ledger, in 
 which he made a charge for his attendance, which was marked as 
 paid^ is evidence upon an issue as to the age of sucli child at the 
 time of his afterward suffering a recovery." \Higham v. Ridgway, 
 10 East's R. 109.) The ground upon which the books of the man- 
 midwife were received was, that the entry made was in prejudice 
 of the party making it ; but the observations of Mr. Justice Le 
 Blanc are pertinent to the question of the admissibility of the 
 declarations of deceased relatives and connections as evidence of 
 pedigree, where it is not practicable to obtain direct evidence of 
 the fact. Indeed, reputation has been held good evidence of a 
 marriage, in an ejectment brought by the heir, though his parents 
 (whose marriage was the subject- of dispute) were both living. 
 {Doe V. Fleming, 4 Bing. R. 266. Iteed v. Prosser, Peake's JN". P. 
 0. 233.) But reputation alone would not be sufficient under such 
 circumstances to establish the marriage. And it has been held in 
 so many words, that the death of an individual cannot be proven 
 by family tradition, nor by entries in a family bible, unless there 
 is no living witness of the fact, although evidence of a long 
 absence in a foreign country and reported death has been allowed. 
 {FosgateY. The Herhimer Manufacturing and Hydraulic Company, 
 12 Barb. R. 352.) That the propositus died, leaving no collateral 
 heirs on the father's side, may be proved by declarations and by 
 reputation drawn from and existing in the family on the maternal 
 as well as on the paternal side, and from connections by marriage 
 as well as blood ; hut such declarations, made by maternal rela- 
 62 
 
490 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 tives, are not admissible after they or their relatives have set tip a 
 claim to the land upon the ground of a defect of collateral heirs 
 of the propositus on the paternal side. It would seem that the 
 law has not, in point of competency, limited an inquiry into this 
 hearsay concerning pedigree, within any particular degree of rela- 
 tionship ; though in old families, the sources of inquiry are, of 
 course, proportionately remote, and the answers less distinct and 
 less reliable. 
 
 In one case in England, the lessor claimed as the heir ex parte 
 materna of one Mary Eowe ; and in order to show that she had 
 heirs ex parte paterna, the declarations of her deceased husband 
 were received. Littledale, J., said the husband must, for this pur- 
 pose, be considered as one of the family. {Doe v. Harney, 1 Kyan 
 & Mood. E. 297.) 
 
 In another English case, the declarations of a deceased woman 
 of what her first husband used to say, were received. Her declara- 
 tions were made after actual connection by marriage had ceased ; 
 ■ but she had once held a relation rendering it very probable that 
 she would learn truly from her husband, wlio was his heir. {Doe 
 V. Randall, 2 Moor & Payne's R. 20.) The principle on which 
 such traditionary evidence on questions of pedigree is admitted 
 is quite familiar, and it is well stated by Burroughs, J., in the 
 case last cited, at page 26 of the report. The declaration of de- 
 ceased servants, or intimate acquaintances, are not admissible ; 
 but some of the cases which hold this, distinctly admit that the 
 declarations of deceased relations may be received, without limit- 
 ing them by blood. {Johnson v. Lawson, 9 Moor's R. 183.) And 
 in a case in the English court of chancery. Lord Erskine speaks of 
 a reputation of descent being established by a relation however 
 distant ; and the case itself holds that a declaration by a deceased 
 husband might be proved to show that his wife was illegitimate. 
 That would be to show that she had no heirs. ( Vowles v. Young, 
 13 Yes. E. 140.) In one case the court said the hearsay must be 
 derived from the husband in respect to the wife's relationship, and 
 seemed to intimate that the declaration of a more remote marriage 
 connection would be inadmissible ; but this does not appear to be 
 settled. {Grease v. Barret, 1 Crompton, Meeson & Eoscoe's E. 928.) 
 
 Testimony as to pedigree is not to be tested by the ordinary 
 rules of evidence. It forms an exception to the general rule. 
 Hence it is, that any thing which shows a general reputation ia 
 
TRE EVIDENCE IN EJECTMENT. 491 
 
 admissible to establish it. Lord Mansfield held, that tradition is 
 sufficient in point of pedigree. {Goodright v, Jfoss, Cowp. E. 591.) 
 
 Lord Kenyon observed in one case : " I admit that declarations 
 of the members of a family, and perhaps of others living in habits 
 of intimacy with them, are received in evidence as to pedigrees ; 
 but evidence as to what a mere stranger has said, has ever been 
 rejected in such cases." {The King v. The Inhabitants of Erswell, 
 3 Term E. 723.) And this doctrine has been fully sanctioned by 
 the American courts in some of the cases hereinbefore cited. 
 (And vide Jackson v. Cooley, 8 Johns. E. 128.) In this case it was 
 declared that hearsay evidence is sufficient to prove a pedigree, 
 and it was also held that the acknowledgment of a deed from 
 persons describing themselves as heirs, taken according to the 
 directions of the act, before the mayor of London, is 'a circum- 
 stance of weight in evidence of pedigree. The action was eject- 
 ment, the lessors of the plaintifi" resided in England, and claimed 
 to be the heirs of the person who died seised of the land in 
 question ; a witness here deposed that he knew the ancestor, and 
 had charge of the Isfnd as his agent, and,- corresponded with him, 
 and, after his death, with the lessor, who sent him a power to act 
 for him as heir and devisee, and that his information was also 
 derived from persons acquainted with the family of the lessors ; it 
 was held that this was sufiScient evidence prima facie of pedigree 
 or heirship, to go to the jury. 
 
 But, as before remarked,, declarations made post litem moiam, 
 or after the suit is moved, will always be rejected. The reason 
 of this is obvious ; statements made b^y persons otherwise reliable, 
 being after a suit brought or a claim started upon the question to 
 which they relate, become entirely inadmissible on account of the 
 supposed bias under which they are uttered. 
 
 "When the claimant in ejectment is the lineal descendant of the 
 person last seised, but little difficulty can arise, as a general thing, 
 in procuring the necessary proofs. But when he claims as col- 
 lateral kin, and it is necessary to trace the relationship between 
 him and the person last seised, through many descents, to a com- 
 mon ancestor, difficulties often intervene, from the remoteness of 
 the period to which the inquiries must be directed, which upon the 
 ordinary rules of evidence, would be insuparable. Birth, mar- 
 riage, and death of parties, have to be established, and he who 
 asserts these facts must prove them. The testimony of persons 
 
492 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 present when the events happened, or who knew the parties Qon- 
 cerned at these periods, and the production of extracts from parish 
 registers, are the most satisfactory modes of proving facts of this 
 nature. But, from the impossibilitj'^ of procuring this kind of 
 evidence in most cases, the courts have relaxed the rules in 
 ordinary inquiries of this nature, and allow hearsay and reputa- 
 tion, under the restrictions, and with the qualifications before 
 stated, to be admitted, in cases of pedigree, as evidence. 
 
 But hearsay evidence is not admissible to prove the j>laee of any 
 particular birth, marriage or death ; for that is a question of locality 
 only, and does not fall within the principle of the rules applicable 
 to cases of pedigree. By the general rule all evidence must be given 
 on oath, when the adverse party has the option of cross-examining 
 the witness. The only established exceptions where hearsay evidence 
 is admitted are in cases of presci'iption, custom and pedigree;, and 
 these are founded upon necessity: for if reputation in respect of the 
 two first, and the declarations of the family as to the other, were 
 not admitted, all probable evidence of these facts would be excluded. 
 But as reputation is no evidence of a partieul'S.r fact, so neither can 
 any particular or collateral fact on a question of pedigree, such as 
 place of birth of a child, be proved by the hearsay declaration of 
 the family ; for this goes beyond the exception established ; which 
 is merely as to tracing the descent. "Wliere the point turns on a 
 single fact, involving no question but of locality, it is to be proved 
 as other facts generally are proved, according to the ordinary course 
 of tlie common law ; that is, by evidence to which the objection of 
 lieavsay does not apply. {The King v. The Inhabitants of Frith, 
 8 East's E. 539.) But the declaration of the parent is evidence of 
 the birth of a child ; and it is also evidence of the time of the birth, 
 so as to fix the age of the child. {Bixihert v. Tuckal, T. Eay. E. 84. 
 Goodright v. Moss, Cowp. E. 591.) And Mr. Justice Buller men- 
 tions hearsay evidence of the family to prove a relative beyond the 
 sea dead; though this must be understood merely as evidence of 
 the death of the person, and not of the fact that he was beyond the 
 sea at the time of his death. (Buller's IST. P. 294, 295. Vide Bart- 
 let V. Delprat, 4 Mass. E. T02.) Baron Gilbert, in his treatise on 
 evidence, lays down the rule, that hearsay is good evidence to prove 
 who is the grandfather, when he married, what children he had ; of 
 which it is not reasonable to suppose the party has better evidence, 
 (Grilb. Ev. 112.) But the general principle in respect to the evidence 
 
TBM EVIDENCE IN EJECTMENT. 493 
 
 wliich is competent to be admitted in cases of pedigree is very well 
 settled, and, doubtless, enough has been said upon the subject. 
 There are some rules peculiar to cases where the lessor claims as 
 heir to copyhold premises, and where he claims as customary heir, 
 but, as these are of little or no practical importance in this country, 
 they are omitted. Should the, student be interested to understand 
 this branch of the subject, he will find it briefly explained in the 
 English cases. ( Vide Rumney v. Eves, 1 Leonard's E. 100. Bad- 
 cliff V. Chaplin; 4 ib. 242. Holdfast v. Glajpham, 1 Term E. 600. 
 Doe V. Ilellier, 3 ib. 162. Eoe v. Parher, 5 ib. 26. Doe v. Bel- 
 lamy, 2 Maule & Selwyn's E. 87.) 
 
 The question of legitimacy, or illegitimacy, frequently arises in 
 those cases where the claimants in ejectment claim by descent ; 
 but the question seldom arises except as a defense to the action, for 
 the reason that the presumption of law is in favor of legitimacy, 
 though, as a general rule, the presumption may be rebutted by 
 evidence. ( Vide Morris v. Davies, 14 Eng. C. L. E. 534. Regina 
 V. Mansfield, 41 ib. 618. Stegall v. Stegall, 2 Brockenbrough's E. 
 256.) This subject will be more properly noticed when the evidence 
 on the part of the defendant in the action of ejectment is considered. 
 
 The identity of the lands and of the person who had seisin must 
 -always be made to appear, and this is not always free of difficulty 
 or doubt. In respect to the identity of the lands, that can gener- 
 ally be established by the usual channels of evidence ; and in 
 respect to the identity of the party who was seised, or who was 
 named in the instrument of conveyance of the lands in dispute, it 
 may be affirmed, that where the claimant traces himself back to a 
 person bearing the same name of the party, the presu?nptio7i is that 
 he has connected himself with the true source of title. The doe- 
 trine is well established by American cases. In an early case in 
 ejectment in the old supreme court of the state of New York, let- 
 ters patent to Peter Shultz, one of the lessors of the plaintiff in 
 ejectment, were produced, the court held that prima facie the 
 lessor was the real patentee. But the defendant proved that there 
 was another person of the same name, who was too young, during 
 the revolutionary war, to be a soldier ; and that the lessor himself 
 had not been a soldier ; and upon that evidence it was held that 
 the defendant was entitled to judgment. Spencer, J., observed: 
 " In this action, whenever the plaintiff introduces a deed conveying 
 the premises to a person of the name of his lessor, it h prima facie 
 
494 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 evidence that the lessor is the real grantee; the burden of dis- 
 proving this, and repelling the presumption, is thrown on the 
 defendant; and he may prove that the deed was granted to a 
 different person of the same name." Thompson, C. J., observed 
 that it was always open to a defendant in ejectment, to show that 
 the lessor was not the person intended by the patent, though he 
 may bear the same name. (Jaclcson v. Ooes, 13 Johns. E. 518.) 
 
 In a late case which has been hereinbefore referred to upon 
 another point, the question of identity also came up. The lessees 
 of the plantiff in ejectment claimed as heirs at law to Moses 
 Miner, and proved that their ancestor was a soldier in the ISTew 
 York line. The name of the soldier to whom the patent was 
 issued was Moses Minner. The court say, " the only difficulty in 
 the case arises from the name being spelled Minner, instead of 
 Miner. It is evident that the soldier under whom the lessors 
 claim wrote his name Miner ; and if it had been shown that there 
 had been in the army any man by the name of Minner, the patent 
 would be deemed to have issued to him. But, nothing of that 
 kind appearing, it must be considered a mere mis-spelling of the 
 name, which cannot affect the identity of the person ; nor is it 
 such a difference in the spelling^ as to make it a distinct name." 
 {Jackson v. Boneham, 15 Johns. R. 226.) 
 
 And in a still later case, in the same court, the action was eject- 
 ment ; the patent was to Patterson, who was described in the bal- 
 loting book, by that name, and as a revolutionary soldier. The 
 plaintiff proved and relied on a deed from Patterson, described as 
 such soldier in the body, but signed Petterson ; and the court held 
 that it was no material variance, and that, at any rate, it was such 
 an ambiguity as might be explained; and that if the soldier 
 intended by the deed was Petterson, and a man different from 
 Patterson, it lay with the defendant to show this, and he had a 
 right to show it. The court say, " the letter e is often pronounced 
 broad like a, and the two names, when spoken by the mass of 
 ordinary men, in common and rapid conversation, would be pro- 
 nounced alike." {Jackson v. Cody, 9 Cow. E. 140. And vide 
 also Jackson v. Hart, 12 Johns. E. 77. Jackson v. Stanley, 10 ib. 
 133. Franklin v. Talmadge, 5 ib. 84.) 
 
 The rule adopted seems to be, that proof of identity may always 
 be admitted when the proof is questioned ; leaving to the defend- 
 ant the right of showing that the plaintiff is not the person in- 
 
TSE EVIDENCE IN EJECTMENT. 495 
 
 tended. And a plaintiff having the. name of a patentee or a 
 grantee, or being the descendant of a person having the name of 
 the patentee or grantee, is never required to go further than the 
 production of the deed or patent, and connect himself with the 
 reputed patentee or grantee ; unless the presumption of identity 
 is first repelled by the defendant. And it is not sufficient for the 
 defendant to prove that there was another person of the same 
 name. He must prove that he was the person to whom the grant 
 was made ; otherwise the prima facie evidence of the plaintiff is 
 not repelled. And whether the question of identity relates to the 
 lessee, or to a previous grantee, from whom the lessee derives his 
 title, the rule is the same. 
 
 CHAPTEE XXYIII. 
 
 THE EVroENOE IN THE ACTION OF EJECTMENT THE PEOOES WHEN 
 
 THE LESSEE CLAIMS AS DEVISEE GENERAL EULES APPLICABLE 
 
 TO WILLS — THE LAWS OF ENGLAND AND NEW YOEK, EESPECTLNG 
 WILLS. 
 
 Having considered the proof of the p]aintift''8 title when he 
 claims by descent, the next question in order is the evidence of 
 title when tlie claim is by devise ; and it will be borne in mind 
 that the presumption in all cases is, that the heirs have succeeded 
 to the estate of their ancestor, and this presumption must be clearly 
 dispelled before any other party is in a situation to recover the 
 estate. 
 
 A devisee, who claims immediately upon the testator's death, 
 must prove the seisin of the deceased, and that his will has been 
 duly executed ; and if the devise under which he claims be of a 
 remainder, or a reversion, or the like, he must prove the determi* 
 nation of all the precedent estates, upon which determination the 
 interest limited to him is made to vest in possession. He must 
 also prove the due execution of the will, pursuant to the provisions ' 
 of the statutes of the state where the same was executed, or where 
 the property is situated, or both. 
 
 A considerable diversity prevails as to the solemnities required 
 in the execution of wills, with regard to devises of freehold land, 
 
496 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 and to bequests of personalty ; and it is therefore proposed to give, 
 as succinctly as possible, the provisions of the statutes of the 
 several states, so far as practicable, upon this subject. The proof 
 required to be given by the claimant in ejectment under a devise 
 cannot be made intelligible, except such statement be made. 
 
 There are, however, a few general principles applicable to wills 
 in all of the states, and also in England, which may as well be 
 stated here as anywhere, and need not be repeated in any other 
 connection. 
 
 First. No testament is of any effect till after the death of the 
 testator. During the life of the testator it is always ambulatory, 
 and may be altered ; and, if there are many testaments, the last 
 overthrows all the former. Nam omne testamentum morte consxim- 
 inatum est, et voluntas testatoris est amhulatoria usque ad mortem. 
 This, Lord Loborough observed, was the most general maxim he 
 knew. {Matthews v. Warner, 4 Vesey's E. 210.) In fact, it is 
 essential to every testamentary instrument, that it may be altered 
 even in arficulo mortis; irrevocability would destroy its essence 
 as a last will. (Batch v. Symes, 1 Turn. & Euss. E. 92. Hdbson, 
 V. JBlacliburn, 1 Addams' E. 278. Reid v. Shergold, 10 Vesey's 
 E. 399.) Though a last will and testament be made irrevocable 
 in tlie strongest words, the testator is at liberty to revoke it ; 
 because a man cannot make that irrevocable which is in its nature 
 revocable ; for this, says Lord Bacon, would be for a man to 
 deprive himself of that wliich of all other things is most inci- 
 dent to human condition ; and that is, alteration or repentance. 
 "Therefore," he adds, "if I make my will, and in the end thereof 
 do add such like clause [also my will is", if I shall revoke this 
 present will, or declare any new will, except the same shall be in 
 writing, subscribed with the hands of two witnesses, that such 
 revocation or declaration shall be utterly void; and by these 
 presents I do declare the same not to be my will, but this my 
 former will to stand], any such pretended will to the contrary 
 notwithstanding ; yet nevertheless this clause, or any the like 
 never so exactly penned, and although it do restrain the revoca- 
 tion but in circumstance and not altogether, is of no force or 
 efficacy to fortify the former will against the second. (Elements 
 of Com. Law Eeg. 19.) 
 
 Second. If a will be once duly executed, and once an existing 
 will in the hands of the testator, unless there be evidence of its 
 
TSE EVIDENCE IN EJECTMENT. 497 
 
 having been canceled or otherwise revoked by tlie testator, the 
 law presumes its continued existence to the time of his death. 
 {Johnston v. Johnston, 1 Phillimove's R. 466. Jackson v. Betts, 
 9 Cow. E. 208. Irish v. Smith, 8 Serg. & Eawle's E. 573.) 
 
 Third. Only one signature of the testator is required, though 
 the will may be written upon several sheets of paper ; and if tiie 
 testimonium clause re'fers to the preceding sheets as severally 
 signpd with the name, whereas he has signed at the end only, this 
 will suffice if it appears to have been in fact intended to apply to 
 the whole. And it is not essential to the validity of a will, that 
 the different parts of it should be physically connected. It is 
 sufficient if they are connected by their internal sense, or by a 
 coherence and adaptation of facts. When the will is found written 
 on several sheets of paper, and the last only is signed and attested, 
 the presumption is that all of the sheets belong to the will. ( Win- 
 sor V. Pratt, 5 J. B. Moore's E. 484. Same Case, 2 Broderip & 
 Bing. E. 650. Marsh v. Marsh, 6 Jur. IST. S. 380. Wylcoff's 
 Appeal, 13 Penn. E. 281. But vide In the Goods of West, 9 Jur. 
 N. S. 1158. Cook V. Lamlert, lb. 258.) 
 
 Fourth. The testator must be qualified in respect to age, mental 
 capacity and freedom from legal disability to make a will ; and 
 when his will is attested he must have mental knowledge and con- 
 sciousness of the fact. Should he be in a state of insensibility at 
 the moment of attestation, his will would be void. {Shires v. Glas- 
 cock, 5 Salk. R. 688. Casson v. Dade, 1 Brown's Ch. E. 99. Doe 
 V. Manifold, 1 Maule & Selw. E. 294. Tod v. Farl of Winchelsea, 
 1 Moore & Malk. E. .12. Hill v. Barge, 12 Ala. E. 687. Bight 
 v. Price, Doug. E. 241.) 
 
 Fifth. The will must be attested by competent witnesses ; that 
 is, by persons who are not rendered imcompetent to give testi- 
 mony, by reason of insanity, mental imbccilitj', or other legal 
 cause. The statutes of some of the states define the qualification 
 of the witnesses ; but the rule is universal that they must be com- 
 petent to give testimony at the time they subscribe their names as 
 witnesses to the will. 
 
 Sixth. The rule that the will may be signed by the testator with 
 his own hand, or, if he is not able to write his name, he may make 
 his mark, is general, and not limited to any country or state ; and, 
 as in the case of the testator, so also a marlc m&Ae by a witness to 
 the will as his signature is a sufficient attestation. (2 Greenl. Ev. 
 63 
 
4:98 LAW OF EJECTMENT AND ADVERSE ENJOTMElfT. 
 
 % 677. 1 Eedfield on "Wills, 229-231, 233. Nickerson v. Buck, 
 12 Cush. E. 332, 341.) 
 
 Seventh. The subscribing witnesses to a will may testify their 
 opinions in respect to the sanity of the testator ; though other 
 witnesses can speak only as to facts. This rule obtains in respect 
 to the subscribing witnesses to a will, for the reason that the law 
 has placed them around the testator to try, judge and determine 
 whether he is competent to execute it. They may, therefore, give 
 their opinions upon the capacity of the testator ex necessitate. 
 (Pool V. Richardson, 3 Mass. R. 330. Chase v. Lincoln, lb. 237. 
 Buokminster v. Perry, 4 ib. 593.) Some writers have placed this 
 distinction between the witnesses to a will and other unprofessional 
 witnesses upon the ground that the testator has chosen these wit- 
 nesses ; but Mr. Eedfield thinks a better reason may be found in 
 the fact, that the statute only requires credible or competent wit- 
 nesses, and tliat courts should-not require more than the statute, 
 or say that when the statute defines the requisites of a witness, he 
 is not to be regarded as competent to testify to every point directly 
 involved in the issue, whether the instrument is the will of the 
 alleged testator or not. (1 Eedfield on Wills, 140.) But whatever 
 the reason for tlie distinction, it is generally agreed that the sub- 
 scribing witnesses to the will are competent to express an opinion 
 of the testator's apparent sanity at the time of execution. {Grant 
 V. Thompson, 4 Conn. E. 203. Be Witt v. Barley, 9 N. Y. E. 371. 
 Bamller v. Trijon, 7 Serg. & Eawle's E. 90, 92. Wogan v. Small, 
 11 ib. 141. Gilson v. Gibson, 9 Yerger's E. 329. Vanauken's 
 Case, 2 Stock. Ch. E. 186, 192. Kinlesicle v. Harrison, 2 Phill. 
 E. 523. Sheafe v. Bowe, 2 Lee's E. 415.) 
 
 Perhaps there are no other rules in respect to wills which may 
 be regarded as of universal application. The foregoing are sup- 
 posed to be applicable everywliere, as they seem to be recognized 
 by both English and American courts, and there are probably no 
 statutes contravening them in any of the states. In respect to the 
 mode of revoking a will, the effect of admitting a will to probate, 
 the number of attesting witnesses required to give validity to a 
 will of lands, and many other matters connected with the execution 
 of wills, there is no uniformity, although in many' of the states a 
 similar rule prevails on several points. 
 
 Another rule, however, may be named, which is well nigh, if not 
 quite universal, viz. ; that which holds that after the lapse of fAirty 
 
TBE EVIDENCE IN EJECTMENT. 499 
 
 years, with possession of the estate according to tlie terms of the 
 will, its regular execution will be presumed without proof by sub- 
 scribing witnesses. But the doctrine as to when the thirty years 
 shall commence is not uniform. In this country the period com- 
 mences at the death of the testator ; while in England it commences 
 from the date of the will. {Staring y. JBowen, 6 Barb. R. 109. Feth- 
 erly v. Waggoner, 11 Wend. R. 599. Jaclcson v. Cristman, i ib. 277. 
 Jackson V. Blanshan, 3 Johns. R. 292. Jackson v. Van Deusen, 5 
 ib. 144. Jaclcson v. Thom.pson, 5 Cow. R. 178. Thaller v. Brand, 
 6 Binney's R. 435, 439, 444, 447. Croughton v. Blach, 12 Mees. & 
 Wels. R. 205, 208. Doe v. Walley, 8 Barn. & Ores. R. 22. Same 
 Case, 2 Carr. & Payne's R. 402, and 2 Man. & Ryl. R. 195.) But 
 mere efflux of time will not authorize a will of thirty years' stand- 
 ing to be given in evidence without proof There must have been 
 possession under it, and such possession must be for the full term 
 of thirty years, if not to the time of the commencement of the 
 action. {Jaclcson v. Luquere, 5 Cow. R. 221. Rancliff v. Parher, 
 6 Dow's R. 202.) And where possession is relied upon, instead 
 of the ordinary and usual proof of the execution of the will, it is 
 not sufficient to exclude it that one of the witnesses to the will is 
 still living. {Doe v. Walley, supra.) 
 
 Another remark may be added in this connection, which is that, 
 as a general rule, a person competent to make a will is not restricted 
 in respect to the persons to whom he may demise his realty, except 
 that if the testator leave a widow, the statute usually secures to her 
 a share of her husband's lands during her natural life; and as this 
 interest is in the nature of a vested right, during the life of her 
 husband, it is not liable to be defeated by the will of her husband. 
 ( Vide Thayer v. Thayer, 14 Vt. R. 107. Ladd v. Ladd, Ib. 185.) 
 
 In ancient times in England the right of testamentary disposition 
 of property did not extend to real estate ; but this restriction no 
 longer exists there, and it has never existed in this country, except 
 in regard to the widow, as above stated ; and except that in some 
 few of the states, the right of disposing of property by will is 
 limited in other respects where the testator leaves descendants ; as 
 in the state of Louisiana, where the testator leaves descendants, he 
 is not at liberty to will his property all away from them. ( Vide 
 1 Redfield on Wills, 2, 3.) 
 
 Perhaps the way is now prepared to enter upon a brief discussion 
 of the distinctive policy of the several states in respect to the sub- 
 
600 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ject of wills. But it may not be amiss, however, in the first j lace 
 to give the provisions of the English statute concerning the due 
 execution of wills, for the reason that many of the United States, 
 in their legislation respecting -wills, have taken the English act as 
 a mod^l for their own. 
 
 By the statutes of England, now in force, it is enacted that no 
 will, with the exception of soldiers' and mariners' wills, shall be 
 valid, unless it shall be in writing, signed at the foot or end there- 
 of by the testator, or by some other person in his presence and by 
 his direction, and the signature made or acknowledged by the 
 testator, in the presence of two or more witnesses present at the 
 same time, and the witnesses subscribed the will in the presence 
 of the testator ; but no form of attestation is made necessary. (Act 
 of "T "William TV, and 1 Victoria, ch. 26, § 9.) 
 
 This act, now in force in England, in respect to wills, is diflFer- 
 ent in many essential particulars from the statute of 29 Car. 11, 
 chapter 3, section 5, upon the same subject, and which is repealed 
 by- the act of 1 Vict, chapter 26. The reported cases upon difier- 
 ent points which have arisen respecting the due execution of a 
 will under the late statute, are very numerous, but it will not be 
 necessary to review them in this connection, although a brief refer- 
 ence will be made to some of them in the course of the discussion, 
 because they are quite applicable to the statutes of some of the 
 states which are similar in their provisions to the statute of 29 Car. 11. 
 
 It will be observed that by the act of 7 William IV, and 1 
 Victoria, the will must be signed " at the foot or end thereof; " 
 the signature must be made or acknowledged by the testator, in 
 the presence of the witnesses ; the witnesses must all be present 
 when the will is signed, or the signature acknowledged by the 
 testator ; two witnesses, and two only, are required to attest the 
 execution of the will; and although they must " attest and sub- 
 scribe the will in the presence of the testator," it is expressly 
 enacted " that no power of attestation shall be necessary." The 
 witnesses must be all present when the testator signs the will him- 
 self, or acknowledges the signature, and the witnesses must all 
 sign in the testator's presence ; but the statute, unlike the statutes 
 of several of the states, does not require that the witnesses should 
 sign at the same time, or in the presence of each other. It is 
 necessary that all the witnesses attest the saTne instrument, and 
 that the instrument attested be that by which the lands are in- 
 
THE EVIDENCE IN EJECTMENT. 501 
 
 tended to pass. Although the subscription of the witnesses must 
 be in the presence of the testator, proof need not be given that 
 the testator actually saw the witnesses subscribing ; their attestation 
 is sufficient, if it appear that he might have seen them. {Baker v. 
 Denning, 9 Adolpli. & Ell. E. 95. Davey v. Smith, 3 Salkeld's 
 E. 395. Tocik V. Earl of Winchester, 1 Moore & Malkins' E. 
 12. Casson v. Dade, 1 Brown's Ch. E. 99.) But if the testator 
 could not possibly see the witnesses subscribe their names to the 
 will, as if they subscribe in another room, out of sight, although 
 by the testator's express directions, the execution will not be good ; 
 the design of the statute being to prevent a wrong paper from 
 being intruded on the testator, in the place , of the true one. 
 {Michael v. Temple, 2 Shower's E. 288. Doe \. Manifold, 1. 
 Maule & Selw. E. 294.) And a signing by witnesses in the same 
 room where the testator lay sick in bed, with the curtains closed, 
 was held not a signing in his presence, he not being able,. from his 
 position, to see the witnesses. {Tribe v. Tribe, 1 Eobertson's E. 
 775. Sam^ Case, 13 Jur. 793.) But the bare fact of the curtains 
 being closed would not be fatal, if the circumstances were such 
 as to indicate that the testator might have seen the witnesses when 
 they placed their signatures to the will. {Newton v. Clark, 2 
 ■ Cartels' E. 320.) It' will be seen, hereafter, that the ruling of the 
 American courts upon this question are substantially in accord- 
 ance with those of the English. A mark is a sufficient signature 
 to a will within the meaning of the statute, even though the tes- 
 tator was able to write ; and an a,ttestation by a mark has also 
 been adjudged to be a sufficient attestation. {Harrison v. Elwin, 
 3 Adolph. & Ell. E. IT. S. 117. Baker v. Denning, supra. In re 
 Bryce, 2 Curt. E. 325. In re FieU, 3 ib. 752. Wilson v. Bed- 
 dard, 12 Sim. E. 28. Taylor v. Draing, 3 ISTeville & Perry's E. 
 228. Jackson v. Van Dusen, 5 Johns. E. 144.) If the attestation 
 clause in the will recites 1;hat the testator has made his mark", it is 
 sufficient if the testator writes his initials instead of making his 
 mark. {In re Savory^ 15 Jur. 1042. Same Case, 6 Eng. Law. & Eq 
 E. 583.) 
 
 "Whether a will or other writing be " signed at the foot or end," 
 or not, would seem to be a very simple question ; and yet the 
 decisions of the courts of England, upon the true construction to 
 be given to these words in the English statute of wills, are not 
 apparently harmonious. The result of the authorities, however, 
 
502 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 would appear to be, tliat where the testator has placed his name 
 below the dispositive part of the will, and on the same side, the 
 signature will, generally speaking, be well placed. The same rule 
 will apply when he has signed below, and on the same side with 
 the testimonium clause. And lastly, that when the signature is 
 below the attestation clause, but not on the same side with the con- 
 clusion of the dispositive part of the will or testimonium clause, 
 the will is not duly signed, unless the attestation clause follow the 
 conclusion of the dispositive part or testimonium clause imme- 
 diately, and without leaving a space for the signature of the tes- 
 tator. ( Vide Jermyn v. Hervey, 1 Eng. Law & Eq. K. 633. In 
 the Goods of Anderson, lb. 634. Ayres v. Ayres, 11 Jurist, 417. 
 WUlis V. Lowe, lb. 807. Snell v. Bryer, 12 ib. 103. In the Goods 
 of Paine, 14 ib. 1032. In the Goods of Howell, 1 Eobertson's R. 
 671. In the Goods of White, 7 N. C. 543. In the Goods of Bat- 
 ten, Ib. 289. In the Goods of Shadwell, Ib. 377.) Dr. Lushing- 
 ton, the eminent judge of the ecclesiastical court, in relation to 
 these words of the wills' act, observed : " I am inclined to con- 
 sider that every signature to a will is sufficient in law, when an 
 ordinary person, intending iona fide to carry out the direction of 
 the statute, would, in conformity with the dictates of common sense, 
 place that signature — not attempting to give to the words ' foot or 
 end,' a more extended meaning than this — what might be fairly 
 deemed the conclusion of the will ; not holding all the world bound 
 to know what we know, that the attestation clause is not the dis- 
 positive part of the will ; taking, however, especial care not to carry 
 this too far ; taking care that no blank be left, either intention- 
 ally or otherwise, between the will and the signature, on which it 
 could reasonably be supposed the testator intended to write, or any 
 other person might write — no interval, except such as must neces- 
 sarily occur from the impracticability of writing the attestation 
 clause on the same side." {In the Goods of Smith, 9 Eng. Law & 
 Eq. R. 573, 575.) 
 
 In respect to the attestation of the will under the English wills 
 act, it has been held by the consistory court, that the subscription 
 of the witnesses without any words of attestation was a compli- 
 ance Avith the 1 Victoria, chapter 26, section 9 ; Dr. Lushington 
 being of the opinion that the true intention of the legislature was 
 to have the essence of the execution, a signing in the presence of 
 the witnesses, and to add as little as possible to formality, in order 
 
THE EVIDENCE IN EJECTMENT. 503 
 
 to prevent litigation. The witnesses must attest as well as sub- 
 scribe ; and the meaning of this is, that the witnesses shall be 
 present, and shall see the signature of the testator. {Bryan v. 
 White, 14 Jur. 919. Same Case, 5 Eng. Law & Eq. R. 579. l5ut 
 vide Hudson v. Parker, 1 Robert. R. 26.) 
 
 The facts of the execution of the will and its attestation must 
 be proved by the subscribing witnesses, if they are alive and can 
 be produced. But if one witness can prove the whole, this will be 
 sufficient proof of the will witliout calling the others ; although 
 tiie heir at law is entitled to the testimony of all the subscribing 
 witnesses, if the will is disputed ; he must, however, produce them 
 himself, if the testimony of one is sufficient for the devisee. 
 ( Wright V. Doe, 1 Adolph. & Ell. R. 3.) 
 
 If all of the witnesses to the will are dead, insane, or out of the 
 jurisdiction of tlie court, proof of the handwriting of the devisee 
 and witnesses, or of the devisee alone, if no proof of the hand- 
 writing of the witnesses can be obtained, has been held to be 
 sufficient without evidence of the solemnities. {Hands v. James, 
 Comyn's R. 531. Groft v. Pawlett, Strange's R. 1109.) And it 
 seems, that, where the attestation clause of a will more than thirty 
 years old recites a compliance with the requisite ceremonies in 
 respect to all the witnesses, it is enough, in order to make out a 
 prima facie case, to prove the death of all-and the handwriting 
 of one of them ; because it will be presumed that every thing that 
 he thus declared by his attestation to have been done was rightly 
 done. Indeed, upon every principle of reason and good sense, 
 where proof is given of the handwriting of one of the attesting 
 witnesses, and satisfactory evidence of the death of the other two, 
 that ought to be sufficient to cast the burden of proof on the other 
 side. {Andrew v. Motley, 12 J. Scott's IT. S. R. 514. Same Case, 
 104 Eng. C. L. R. 513.) 
 
 If a subscribing witness should deny the execution of the will, 
 he may be contradicted as to that fact by another subscribing 
 witness ; and even if they all swear that the will was not duly 
 executed, the devisee will be allowed to go into circumstantial 
 evidence to prove its due execution. And if one of the subscribing 
 witnesses impeach the validity of the will on the ground of fraud, 
 and accuse other witnesses, who are dead, of being accomplices in 
 tlic fraud, the devisee may give evidence of their general character. 
 ( Vide Blake v. Knight, 3 Curteis' R. 547. Alexander v. Oibsony 
 
504 LAW Of EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 2 Camp. E. 556. Gilbert's Ev. 69. Buller's K P. 264. Doe v. 
 Stephenson, 3 Esp. E. 284. Same Case, 4 ib. 50.) But positive, 
 evidence of one of the subscribing witnesses negativing the fact 
 of signing, or acknowledgment of the signature of the deceased in 
 his presence, in the absence of circumstances raising any presump- 
 tion of his being mistaken, will compel the court to pronounce 
 against the due execution of a testamentary paper. And Sir H, 
 Jenner Fust, judge of tlie prerogative court, in deciding the case, 
 said : " Mere presence of the witness in the room, without any 
 knowledge on his part of what may be going on, is clearly not 
 sufficient to make a good execution." [Nording v. AlUston, 14 
 Jur. 904. Same Case, 2 Eng. Law & Eq. E. 594.) 
 
 It is not necessary, in case the testator should be a marksman or 
 blind, that the will should be read over to him previous to its Exe- 
 cution. The statute only requires that the testator shall execute 
 the will in the presence of the attesting witnesses, and, in ordinary 
 cases, when that is done, all is done that is necessary to be done. 
 Frauds are sometimes practiced, and with a view to preventing 
 such frauds the statute directs the will to be signed or acknowl- 
 edged in the presence of the attesting witnesses. In the case of a 
 blind man stronger evidence would be required than the mere 
 attestation of the signature; but, if it appears from all the circum- 
 stances that the instrument is really and ionafide his instrument, 
 that is all that is required. ( Vide Longchamp v. Fish, 5 Bos. & 
 Pull. E. 415.) 
 
 Declarations of the testator are admissible where the will is dis- 
 puted on the ground of fraud, circumvention or forgery. {Doe t 
 Hardy, 1 Manning & Eyland's E. 525.) And evidence may also 
 be given of declarations made by him that he attempted to destroy 
 his will. {Doe v. Hawes, 7 Carr. & Payne's E. 331.) These prin- 
 ciples governing the execution of a will under the English wills 
 act are applicable as a general thing to the same subject in the 
 United States, and therefore no apology is necessary for the refer- 
 ence to them in this chapter. 
 
 By the statutes of the state of New York, all persons, except 
 idiots, persons of unsound mind, and infants, may devise their real 
 estate by a last will and testament, duly executed according to the 
 provisions of the statute; and every estate and interest in real 
 property, descendible to heirs, may be so devised. (2 Stat, at Large, 
 68, §§1, 2, as amended by the Laws of 1867, ch. 782.) 
 
TBE EVIDENCE IN EJECTMENT. 505 
 
 The statute requires that the will be subscribed by the testator 
 at the end of the will, in the presence of each of the attesting 
 witnesses, or that the subscription be acknowledged by him to 
 have been so made, to each of the attesting witnesses. The testa- 
 tor, at the time of making such subscription or acknowledgment, 
 is required to declare the instrument so subscribed to be his last 
 will and testament ; and there must be at least two attesting wit- 
 nesses, each of whom must sign his name as a witness at the end 
 of the will, at the request of the testator. (2 Stat, at Large, 63, 
 64, § 40.) There have been many cases before the courts involving 
 the due execution of wills under the New York statute, but it will 
 not be neeessafy to refer to them all. Enough only will be cited 
 to give the practitioner a comprehensive view of the settled doc- 
 trine of the courts. 
 
 In respect to the mental capacity of the testator, the rule has 
 been declared by the highest j.udicial tribunal of the state to be 
 the same under the New York statute of wills as at common law, 
 and that is, that the legal presumption is, that every man is com.pos 
 mentis; and the bui'den of proof that he is non compos mentis rests 
 on the party who alleges that an nnnatural condition of mind 
 existed in the testator. He who sets up the fact, that the testator 
 was non compos mentis, must prove it. In law, the only standard 
 as to mental capacity iii all who are not idiots or lunatics is found 
 in the fact whether the testator was compos mentis or non compos 
 mentis, as, those terms are used in their fixed legal meaning. Such 
 being the rule, the question is, had the testator, as compos mentis, 
 capacity to make a will ; not, had he capacity to make the will 
 produced. If compos mentis, he can make any will, however com- 
 plicated: if non compos mentis, he can make no will — not the 
 simplest. These propositions were laid down and discussed with 
 great ability, and a large number of cases to illusti'ate the question 
 of mental capacity or disposing mind, both English and American, 
 were critically examined, in a leading case in the New York court 
 of appeals, and such propositions were settled as controlling under 
 the statiites of the state. But the question of mental capacity of 
 the testator more generally arises when the will is offered for pro- 
 ' bate than when the will is offered in evidence in the action of 
 ejectment. Little else is considered necessary here, therefore, than 
 to refer to the case in the court of appeals, before mentioned, in 
 which the rules of law applicable to the subject are discussed and 
 64 
 
506 LAW OF EJECTMENT AND ADVERSE ENJ0T3IENT. 
 
 the authorities involving the question are elaborately examined. 
 {Delafield v. Parish, 25 N". Y. R. 9. Vide also the American Sea- 
 men's Friend Society v. Hopper, 33 ib. 619.) Numerous other 
 authorities miglit be referred to, but an extended discussion of the 
 subject is not quite appropriate here, for the reason that this ques- 
 tion of mental capadity is usually rested upon tlie evidence taken 
 when the will is admitted to probate; and yet the record of the 
 will, like that of a deed, is only 'prima facie evidence of its authen- 
 ticity, and may be repelled by contrary proof. . This is tlie rule at 
 common law, and the principle is sanctioned by the legislature of 
 New York. (2 Stat, at Large, 59, § 15. Jackson v. Humsey, 
 3 Johns. Cases, 234. Vanderpoel v. Van Yalkenhurgh, 6 N. Y. R. 
 190, 199.) And if it can be shown on the trial of an ejectment 
 that the testator was incompetent to make a will, from whatever 
 cause it may proceed, whether from a natural decay of intellect, 
 from derangement, or partial insanity, it is the privilege of the 
 heir at law to show the fact in answer to the title by devise, not- 
 withstanding the will may have been admitted to probate. But 
 in respect to this qualification of the testator, that he have " a sound 
 and disposing mind and memory," it is difficult, if not impossible, 
 to lay down any thing like a uniform test or standard. It is suffi- 
 cient here to say, in the language of judicial authority, that the 
 testator "must undoubtedly retain sufficient active memory to col- 
 lect in his mind, without prompting, particulars or elements of the 
 business to be transacted, and to hold them in his mind a sufficient 
 length of time to perceive at least their more obvious relations to 
 each other, and to be able to form some rational judgment in rela- 
 tion to these;" and iu executing the devise he must understand 
 what he is doing. {Converse v. Converse, 21 Vt. R. 170. Kinne 
 V. Kinne, 9 Conn. R. 102.) 
 
 But the question of the diie execution of a will may be very 
 properly discussed in this connection, for the reason that the proofs 
 are required to be recorded, and are, therefore, a part of the record, 
 and must be produced in evidence by the devisee with the will, as 
 a part of his case. 
 
 In respect to the subscription of the will by the testator, the 
 statute is substantially complied with where the testator affixes, in 
 the proper place, with his own hand, characters which he declares 
 to be his signature. The fact that the testator may be aided in 
 directing the movements of his hand and pen does not injure the 
 
TBE EVIDENCE IN EJECTMENT. 507 
 
 execution. Accordingly, where a testator, being too weak to sub- 
 scribe his name at tlie end of his will, two marks were made in 
 the proper place, opposite a seal, with a pen held in the fingers of 
 the testator, and his hand guided by another, wliich marks he 
 declared it to be his wish should be understood to be his signature, 
 it was held that this was a valid subscription of the will within the 
 meaning of the statute. ( Van Hanswych v. Wiese, 44 Barb. K. 494.) 
 A " signature " consists both of the act of writing the party's name, 
 and of the intention of thereby finally authenticating the instru- 
 ment, and both these requisites seem to be answered in the case cited. 
 
 So, also, tlie testator's name may, by his direction, be signed for 
 him by another person ; but the signature ought to be placed to 
 tlie instrument in the presence of the testator and by his direction. 
 (Chaffee v. Baptist Missionary Convention, 10 Paige's Ch. R. 85. 
 Camjpbell v, Logan, 2 Bradford's E. 90. Kinney v. Whitmarsh, 
 16 Barb. R. 141.) The testator must subscribe his name at the end 
 of the will, which may be by his autograph, or by his mark, or, if 
 he is unable to write, by another in his presence and by his express 
 direction. {Butler v. Benson, 1 Barb. R. 526, 533. Robins v. 
 Coryell, 27 ib. 556.) And the making of his mark at the end of 
 the will is a suiBcient subscription of the will by the testator at 
 the end thereof, as well under the New York as the English wills 
 act. {Chaffee v. Baptist Missionary Convention, supra.) 
 
 A testamentary instrument is signed at the end thereof, when 
 nothing intervenes between the instrument and the subscription. 
 It cannot be declared that the subscription shall be one-eighth of 
 an inch, half an inch, two inches, or ten inches from the last line 
 of the instrument. The distance from the last line has not been 
 fixed by statute. The pface named in the statute is the end ; and 
 the end of an instrument in writing commences and continues 
 until something else, or some other writing occurs. These princi- 
 ples are said to be in conformity with the spirit of the decisions in 
 the state of New York, in respect to the execution of testamentary 
 instruments.. And it was accordingly loeld that a codi^^il was 
 signed by the subscribing witnesses at the end thereof; although 
 there was a blank space of four inches, between the signature of 
 the testator and the commencement of the attestation clause. The 
 doctrine , of the case will apply as well to the signature of the 
 testator as to that of the witnesses, for the language of the statute 
 is precisely similar in both cases. {In the Matter of Oilman, 38 
 
508 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Barb. R. 364.) The statute requires the will to be signed or 
 acknowledged in the presence of tlie witnesses ; and it has been 
 held a fatal objection to the execution of the paper, that one of 
 the witnesses neither saw the testator subscribe, nor heard him 
 acknowledge his signature to the instrument. {Rutherford v. 
 Rutherford, 1 Denio's R. 33.) And when the testatrix's name, in 
 the handwriting of another person, had been subscribed to the 
 will before the attesting witnesses were called in, but she distinctly 
 declared to them both, that the paper was her last will and testa- 
 ment ; it was, notwithstanding, held by the late chancellor of the 
 state, not to have been legally executed, for the want of its being 
 signed by the testatrix, or having the testatrix's signature 
 acknowledged by her, in their presence. [Chaffee v. The Baptist 
 Missionary Convention, 10 Paige's Ch. R. 85.) 
 
 It will be observed that the English wills act expressly requires 
 the subscribing witnesses to a will to become such by attesting 
 and subscribing the same, in the presence of the testator ; and this 
 was the law in the state of Kew York prior to the revision of 
 1830. Indeed, the revisers reported the section with the words 
 contained in it, but the clause requiring the witnesses to subscribe 
 in the .presence of the testator was omitted by the legislature; 
 indicating clearly an intention to change the law in that particu- 
 lar. It is, doubtless, a necessary requisite of an attestation to 
 &nj instrument, that the- witness subscribe at the time of the 
 execution or acknowledgment thereof, and with the knowledge 
 and consent of the one who executes the instrument. {Henry v. 
 Bishop, 2 "Wend. E. 575. BbUenbach v, Fleming, 6 Hill's R. 
 303.) But there is no principle of law which requires the attest- 
 ing witness to subscribe in the presence of the party who executes, 
 except when it is expressly required by some statute. The formali- 
 ties necessary to the due execution of a will depend wholly upon 
 statutory regulations ; and as the present New York statute of 
 wills does not require the attestation to be in the presence of the 
 testator, it seems no longer necessary in that state. (Z/yon v. Smith, 
 11 Barb. R. 124. Ruddon v. McDonald, \. Bradf. R. 352.) 
 
 The attesting witnesses should see the testator, or some one for 
 him, sign the instrument which they are called upon to witness, 
 or the testator should either say or do something in their presence 
 and hearing indicating that he means to recognize the -instrument 
 as one which has been signed by him as a valid will, or as having 
 
TOE EVIDENCE IN EJECTMENT. 609 
 
 been signed by his authority for the purposes therein expressed. 
 But it is not necessary that the testator should in terms declare 
 that his name, signed to the will, was so signed by him, or that it 
 was so signed by his authority and direction in his presence. The 
 production of the will with his name subscribed to it, in such a 
 way that the signature could be seen by the witnesses, and his 
 request that they should witness the execution of the instrument 
 by hira, or as his will, would be a sufficient acknwledgment of his 
 signature to render the will valid under the iact. The statute does 
 not require any particular form of words to be used by the testator 
 either in admitting his signature, in the publication, or in the 
 request to the witnesses to attest the will. It is sufficient if 
 the formalities required by the statute are complied with in sub- 
 stance. {Jauncey v. Thome, 2 Barb. Ch. E. 40. Welson v. Mo- 
 Gifferts, 3 ib. 158.) 
 
 But if the will is not subscribed by the testator in presence of 
 the witnesses, the signature must be shown to them and recognized 
 by the party, and in some apt and proper manner acknowledged 
 by him as his signature. The statute is explicit, and will not be 
 satisfied with any thing short of a substantial compliance with its 
 terms. A signature neither seen, identified, nor in any manner 
 referred .to as a separate and distinct thing, cannot in any just 
 sense be said to be acknowledged by a reference to the entire 
 instrument by name, to which the signature may or may not be at 
 the time subscribed. When the signature was not seen by the 
 witnesses, and the only acknowledgment of the signature of the 
 party was, in substance, '' I declare the within to be my free will 
 ■ and deed," the court of appeals held the acknowledgment of the 
 signature to be insufficient. {Lewis v. Lewis, 11 N. Y. E. 220. 
 And vide Butler v. Benson, 1 Barb. 526.) 
 
 Under the New York wills act, an actual publication of the in- 
 strument by the testator as his will, in the presence of the 
 subscribing witnesses, at the time of its execution, is necessary to 
 its validity ; but this publication is not required to be in words, 
 nor in any form of words. The subscribing witnesses must, at 
 the time of its execution, know it to be a will, and that the. testator 
 understands it to be and means to execute the instrument as his 
 will. {Remsen v. Brinkerhoff, 26 Wend. E. S25.) To satisfy 
 the statute the testator must in some way or manner communicate 
 to the attesting witnesses, at the time they are called to sign as 
 
510 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 witnesses, the information that the instrument then present is of a 
 testamentary character, and tliat he then recognizes it as his will 
 and intends to give it effect as such. It must be declared to be 
 liis last will and testament by some assertion or some clear assent 
 in words or signs, and the declaration must be unequivocal. The 
 policy and object of the statute require this, and nothing shoi't of 
 this will prevent the mischief and fraud which were designed to 
 be reached by it. It will not suffice that the witnesses have else- 
 where and from other sources learned that the document which 
 they are called to attest is a will, or that they suspect or infer from 
 the circumstances and occasion that such is the character of the 
 paper. The fact must in some manner, although no form of words 
 is required, be declared by the testator in their presence, that they 
 may not only know tlie fact, but that they may know it from him, 
 and that he understands it, and at the time of its execution, which 
 includes publication, designs to give effect to it as his will, and to 
 this, among other things, they are required by statute to attest. 
 Every fact is important in view of the position of the attesting 
 witnesses. They are, in the theory of the law, placed around the 
 testator when executing his will, and they should be satisfied that 
 the instrument is in fact the last will and testament of the party, 
 and is executed and published as such, and that he is of sound and 
 disposing mind and memory, and in all respects competent to 
 perform the act. This is the substance of the highest judicial 
 authority, and is conclusive on the point. The words, " I declare 
 the within to be my free will and deed," were held by the court of 
 appeals, not a sufficient acknowledgment by the testator of his sub- 
 scription to the will to the witnesses within the statute ; a,nd further,- 
 that this language was not of itself a sufficient declaration that 
 the instrument was his will. {Lewis v. Lewis, 11 N. Y. K. 220.) 
 And to render the execution of a will or codicil effectual, the tes- 
 tator must in the presence of two witnesses declare tlie insti'ument 
 to be his last will and testament. It is not sufficient that he makes 
 such declaration in the presence of one witness, and signs the instru- 
 ment in the presence of two who subscribe it as witnesses at his 
 request. {Seymour v. Van Wyclc, 6 N. Y. E. 120.) But the pub- 
 lication of a will may be made in any from of communication by 
 the testator to the witnesses, whereby he makes known to them 
 that he intends the instrument to take effect as his will. The 
 declaration may be made in answer to a question, or even by a 
 
TBE EVIDENCE IN EJECTMENT. 511 
 
 Bign. It is only required that it be nnderstandingly made, and 
 if the evidence of the publication of the will show this, nothing 
 more is required. {Coffin v. Coffin, 23 N. Y. K. 9.) And it seems 
 that the will may be published by the testator before he has ac- 
 tually signed it. To illustrate, when the testator, being in the 
 same room with the persons who witnessed his will, took up his 
 will, which was not yet signed, and turning to the witnesses, and 
 calling each of them by name, said : " That is my last will and 
 testament;" and then took a pen and wrote his name to it; 
 whereupon the witnesses subscribed the document as attesting 
 witnesses; the supreme court held that the direction of the statute 
 was complied with, notwithstanding the declaration was made 
 hefore the testator had signed the will, instead of afterward. 
 {Gamble v. Gamble, 39 Barb. E. 373.) 
 
 The statute finally requires that the will should be attested by 
 at least two attesting witnesses, each of whom must sign his name 
 as a witness at the end of the will, at the request of the testator. 
 In respect to the request of the testator that the witnesses sub- 
 scribe the attestation, the same may be made through any words 
 or acts which clearly evince that desire to them. And it has been 
 held by the court of appeals that, when one of the witnesses, in 
 the presence and hearing of the other, whose attendance was by 
 the testator's procurement, asked the testator, " do you request me 
 to sign this (the paper lying before them) as your will, as a wit- 
 ness ? " and the testator said, " yes ; " the same was sufficient as 
 a request to both witnesses, and as a publication of the will. 
 {Coffin V. Coffin, supra^ And it is not necessary to the due 
 attestation of a will that the witnesses should subscribe in the 
 presence of each other. It suffices that each witness subscribe in ^ 
 the presence and at the request of the testator, but severally and 
 apart as respects each other. {Hoysradt v. Kingman, 22 N. Y. 
 K. 372. Jauncey v. Thome, 2 Barb. Ch. E. 40.) This is in ac-, 
 cordance with the rule as laid down in the English courts. In 
 two late cases in those courts the rule is exemplified and adhered 
 to ; in both of which the attestation of the several witnesses were 
 at different times, and in the first there was an interval of two 
 months between the several attestations; yet the wills in both 
 cases were held executed. {WMte v. The British Museum, 6 
 Bing. E. 310. Wright v. Wright, 7 ib. 457.) 
 
'612 LAW OP EJECTMENT Ar>^D ADVERSE ENJOYMENT. 
 
 The witnesses are required to subscribe their names at the end 
 of the will. This provision is complied with when nothing inter- 
 venes between the instrument and the subscription ; and it has 
 been held, that a codicil was signed at the end thereof by the sub- 
 scribing witnesses, although there was a blank space of four inches 
 between the signature of the testator and the commencement of 
 the attestation clause. {In the Matter of Gilman, 38 Barb. E. 364.) 
 
 It has been before stated that a witness to a will may sign his 
 name as such witness by making his mark ; and that the testator's 
 subscription may be made by his mark, or it may be written by 
 another person in his presence and by his express direction. But 
 a witness, who has written the testator's name to the will at his 
 request, must write his own name as such witness. While other 
 witnesses to the will may sign by mark, or by other persons writing 
 their names, and even guiding their hands, while making their mark, 
 it is held to be indispensable that the witness writing the name of 
 the testator should write his own name as a witness. (Meeha/n, v. 
 Bourlce, 2 Bradf. E. 385.) 
 
 The authorities under the wills act of the state of New York 
 are very numerous, but the principles enunciated are substantially 
 in accordance with the rules hereinbefore stated; and as these 
 rules are for the most part settled by the court of last resort, and 
 the cases are fully cited, no further reference to the adjudicated 
 cases is thought necessary. 
 
 The execution of the will should be proved by the subscribing 
 witnesses, if they ai-e living and can be produced. If the witnesses 
 are dead, or their testimony cannot be obtained, the execution of 
 the document may be proved by calling other witnesses, and 
 proving the handwriting of the testator and of the subscribing 
 witnesses. (2 Stat, at Large, 59, § 13.) And if the subscribing 
 witnesses to the will, when produced, fail to prove the instrument, 
 other witnesses may be called ; though the proof in such cases 
 should be very clear. {Butler v. Benson, 1 Barb. E. 526.) 
 
 "Where one of the subscribing witnesses to the will swears posi- 
 tively that the will was executed with all the requisite formalities, 
 this is sufficient; and his testimony will not be overthrown or 
 balanced, by the non-recollection of the other subscribing witness. 
 {Newhoiise v. Godwin, 17 Barb. E. 236. Tarrant v. Ware 25 
 ]Sr. Y. E. 425, note. Jaohson v. Yichery, 1 "Wend. E. 406.) Indeed 
 although both of the witnesses to the will must be called and 
 
TBE EVIDENCE IN EJECTMENT. 513 
 
 examined, if they are alive and their testimony can be procured, 
 the will may be established even in direct opposition to the testi- 
 mony of both of them. ' This is considered by the court of appeals 
 to be too well settled to call for the citation of aiithorities. {The 
 Trustees of the Theological Seminary of Auburn \. Calhoun, 25 
 N. Y. R. 422.) The fact is, the attesting witnesses may forget the 
 facts to which they had once attested, and it is not impossible that 
 they may not have been tampered with by interested parties, and 
 thus be induced to deny on oath the facts which they have been 
 eelected to witness and to depose to. This view has prevailed with 
 the courts, and the rule has been conclusively settled, that, in case 
 the witnesses should both deny the execution of the will, the same 
 may be substantiated by others. 
 
 The will may be proved in the state of New York, before the 
 surrogate, and if it appears upon the proof taken that such will 
 was duly executed — that the testator, at the time of executing the 
 same, was in all respects competent to devise real estate, and not 
 under restraint — the said will, and the proofs and examination so 
 taken, must be recorded in a book provided by the surrogate, and 
 the record thereof must be signed and certified by him ; and every 
 will so proved must have a certificate of such proof indorsed 
 thereon, signed by the surrogate, and attested by his seal of ofiice, 
 and may be read in evidence without further proof thereof. The 
 record of such will, made as aforesaid, and the exemplification of 
 sucli record by the surrogate in whose custody the same may be, 
 will be received in evidence, and is made as effectual in all cases 
 as the original will would be, if produced and proved, and may, 
 in like manner, be repelled by contrary proof. (2 Stat, at Large, 
 59, §§ 14, 15.) 
 
 The object of this provision of the statute was to make the certi- 
 ficate of the surrogate and the record of the will or an exemplifi- 
 cation, ^n'mtt facie evidence. TJje legislature have accordingly 
 declared that such shall be their effect ; and have placed them 
 upon the same footing as the records and exemplifications of deeds. 
 ( Yander'poel v. Tan Valkenlurgh, 6 N. Y. R. 190.) Tiie record, 
 if complete, will contain the proofs, and the exemplification should 
 in like manner extend to botli, otherwise it is inadmissible. The 
 record of the will alone, without the proofs and examinations 
 taken by the surrogate, would not be admissible. The proofs and 
 examinations are indispensable to give validity to the record of the 
 65 
 
514 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ■will. (Morris v. Keys, 1 Hill's E. 540. Caw v. liolertsor), 5 IS". 
 T. E. 125. Hill r. Crockford 24 ib. 128.) 
 
 In general, when a copy of any record is made legal evidence, the 
 ■whole must be certified; mere extracts will not be received. The 
 authentication of the copy, moreover, whether it be by a certifi- 
 cate merely, or a technical inspeximus or exemplification, should 
 import that it is a copy of the whole. ( Vide Cowen & Hill's 
 notes to Phil. Ev. 1050 to 1061.) 
 
 It will be observed that by the '^q\y York statute, the prohate 
 and registry of the will is made prima facie evidence of its due 
 execution and contents, in respect to the realty, though it is con- 
 clusive in respect to the personalty. The same is the law in several 
 others of the states, while in some the probate of the will is con- 
 clusive in respect to the realty as well as to the personalty. The 
 difference in the practice M'ill be noticed hereafter. In England, 
 there does not seem to be any provision for the probate of wills of 
 real estate, and where there is no statute upon the subject it is 
 necessary to establish the execution of the will by proof whenever 
 any question arises in courts involving the inquiry. Indeed, in 
 England the validity of a will of real estate is cognizable only in 
 the courts of common law, and in the ordinary forms of suits ; and 
 the verdict and judgment are conclusive only upon the parties and 
 privies, as in other cases. While in most, if not all of the United 
 States, courts are constituted by statute, with general power to 
 take the probate of wills, and when such power is conferred in 
 general terms, without making any distinction between wills of 
 personalty and wills of realty, probably such courts may acquire 
 complete jurisdiction over the probate of a will as well of real as 
 of personal estate, and therefore their decrees would be conclusive 
 upon all persons and in all courts. .{2 Greenlf. Ev. § 672.) But 
 this is wholly regulated by express provision of statute as before 
 stated ; and, by the New York statute, probate is only prima 
 facie evidence of the due execution of the will as to the realty, 
 ■while it is conclusive as to the personalty. 
 
THE EVIDENCE IN EJECTMENT. 615 
 
 CHAPTEE XXIX. 
 
 THE EVIDENCE m THE ACTION OF EJECTMENT THE PEOOES WHEN THE 
 
 LESSOR CLAIMS AS DEVISEE — THE LAWS OF THE SEVERAL STATES, 
 EXCEPTING NEW YORK, IN RESPECT TO WILLS. 
 
 Having examined the general rules applicable to wills in all the 
 states, and given the substance of the statutes of England, and of 
 the state of New York in respect to tlie execution of wills, and 
 referred at considerable length to the points settled by the courts 
 in cases arising under the English and New York wills acts, it will 
 not be necessary to give any thing more than a very brief and suc- 
 cinct view of the laws of the remaining states respecting testamen- 
 tary devises and the subject of wills. 
 
 In the state of Maine, a person of sound mind, and of the age 
 of twenty-one years, may dispose of his real and personal estate 
 by will, in writing, signed by him, or by some person for him at his 
 request, and in his presence, and subscribed in his presence by three 
 disinterested and credible attesting witnesses; and where the wit- 
 nesses are competent at the time of attestation, their subsequent 
 incompetency will not prevent the probate of the will. Heal estate 
 owned by the testator, the title to which was acquired after the 
 will was executed, will pass by it, where such appears to have been 
 his intention. No will is effectual in Maine to pass real or personal 
 estate unless proved and allowed in the probate court ; and its pro- 
 bate by that court is conclusive proof of its execution. (Revised 
 Statutes, 1857, ch. 74, §§1, 2, 5, 15.) So the question of the due 
 execution of a will is disposed of in the court of probate, and can- 
 not arise upon the trial of an action at law brought by a devisee to 
 recover the land claimed to have been devised, provided the court 
 of probate had jurisdiction of the case. {Patten V. Tallman, 27 
 Maine R. 17.) But the legal construction of a will is exclusively 
 a subject of common law jurisdiction, and is not cognizable by the 
 supreme judicial court when sitting as the supreme court of pro- 
 bate. {Small v. Small, 4 Maine R. 220.) Any will proved and 
 allowed in any other of the United States, or in any foreign country, 
 according to the laws thereof, may be allowed and recorded in the 
 state of Maine, although no will is made valid by the statute that 
 is not executed in the manner prescribed by the laws of that state. 
 
516 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 (Revised Statutes, ch. 64, §§ 8, 10. And vide Potter v. Titconib, 
 22 Maine E. 300.) 
 
 The laws of New Hampshire, in respect to the execution of wills 
 of real estate, are substantially the same as in the state of Maine, 
 except that by the statute of New Hampshire the instrument must 
 be sealed, which is not the case in Maine : and the probate of the 
 will in New Hampshire is also made conclusive as to its execution, 
 the same as in Maine. (Eevised Statutes, ch. 156, §§1, 2, 6; ch. 
 157, §§1,13. Gomp. Laws, 401-3.) No will is eifectual to pass 
 the title to real estate, unless it has been duly proved and allowed 
 in some probate court of the state, or something equivalent to 
 sucli approval and allowance has taken place. {Barstow v. Sprague, 
 40 N. H. E. 27.) And to make a copy of a foreign will and its 
 probate competent evidence of title to real estate in Maine, the 
 will must have been proved before some probate court in the State, 
 or a duly authenticated copy of tiie will and its probate elsewhere 
 must have been filed and recorded in some probate office in the 
 state of New Hampshire, upon application in writing for that pur- 
 pose, after due notice, pursuant to a decree of probate to that effect. 
 {Barstow v. Sprague, supra.) 
 
 The laws of Vei-mont, in respect to wills, and the due execution 
 thereof, are substantially the same as in Maine and New Hampshire. 
 (Eev. Stat. ch. 45. Gen. Stat, of 1863, eh. 49.) A will in Vermont 
 need not be signed by the testator in the presence of tlie attesting 
 witnesses, although the witnesses must attest and subscribe it in the 
 presence of the testator ; but if it be so signed, that it can in any 
 event satisfy the statute, and the testator declare it to be his will, 
 in the presence of the three witnesses, this is equivalent to the testa- 
 tor's signing it in their presence. {Adams v. Field, 21 Vt. E. 256.) 
 
 In the state of Massachusetts the statute provides that " no will, 
 excepting nuncupative wills, shall be effectual, unless it be in writ- 
 ing, and signed by the testator, or by some person in his presence 
 and by his express direction, and attested and subscribed in the pres- 
 ence of the testator, by tliree or more competent witnesses." And 
 the laws of Massachusetts in respect to foreign wills, and the effect 
 of the probate of a will, are the same as in the state of Maine. 
 (Gen. Stat. 1860, ch. 92, §§ 6, 8, 21, 22, 38.) It seems that the 
 statutes of none of the New England states require a formal publi- 
 cation of a will by the testator, as required by the wills act of the 
 Btate of New York, But there must be proof that the testator 
 
TME EVIDENCE IN EJECTMENT. 517 
 
 knew the instrument to be his -will, and tliat he intended it as 
 such; altliough no formal publication of the instrument, no decla- 
 ration of its contents, or of its nature, is necessary to satisfy the 
 requirements of the New England statutes. And it seems to be 
 settled that the testator need not execute tlie document in the pres- 
 ence of the witnesses; that the witnesses need not sign the instru- 
 ment in the presence of each other ; and that all which is required 
 is, that the testator shall see their attestation, or be in a situation 
 where he can see it. His acknowledgment that the instrument is 
 Lis, with a request that they attest it, is sufficient. And a will in 
 the handwriting of the testator, and signed by him in the presence 
 of three competent witnesses wlio attest the same at his request, 
 and in his presence, has been held in Massachusetts to be well exe- 
 cuted, although the testator does not, declare to the witnesses, and 
 they do not kno\7, that it is his will. ( Vide Osborn v. Cook, 11 
 Cush. K. 532. Dewey v. Dewey, 1 Met. E. 349. Ilogan v. Gros- 
 venor, 10 ib. 54.) But the testator must see the witnesses subscribe 
 his will, or be in a position that he may see them sign it. And, 
 where two of the three witnesses to the will, when signing it as 
 such, were in a different room from the testatrix, and not in her 
 presence, view, or hearing, although in a room connected by an 
 intermediate room with that in which she was lying ; this was held 
 not to be a sufficient signing by the 'witnesses in the presence of 
 the testatrix. {Baldey v. Parris, 2 Cush. R. 433.) In Massachu- 
 setts, a will devising land must be proved and allowed in the pro- 
 bate court, before it can be used as evidence of title in a court of 
 common law. {Shumway v. Holhrook, 1 Pick. R. 114. Laughton 
 V. AtUns, Ib. 535, 549.) 
 
 The statute of Rhode Island in respect to wills is in substance 
 the same as of Maine, the language being : " all devises and be- 
 quests of any lands, tenements, or hereditaments shall be in 
 writing, and signed by the party devising the same, or by some 
 person in his presence and by his express direction; and shall be 
 attested and subscribed in the presence of the devisor, by three or 
 more witnesses, or else shall be utterly void." (R. S, ch. 154, §§ 
 1, 4.) And the probate of the will is made conclusive as to its 
 due execution, the same as in the other New England states. And 
 the law of Rhode Island in respect to foreign wills is the same as 
 in the other New England states. (R. S. ch. 155, §§ 1, 5, 8, 9.) 
 The statutes of Connecticut provide that all wills must be in 
 
518 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 writing, and subscribed by the testator ; and no devise or devises 
 of real estate contained in any will or codicil will be held good 
 and valid unless such will or codicil shall be subscribed by the 
 testator, and attested by three witnesses, all of them subscribing in 
 the presence of the testator. (Laws of 1848, ch. 41.) All wills 
 executed out of the state of Connecticut, according to the formali- 
 ties required by the law of the place where executed, whether of 
 real or personal estate, have the same power and effect of domestic 
 wills to pass real property situate in the state of Connecticut. 
 (Laws of 1856, ch. 44. Laws of 1863, ch. 7. And vide Irwivus 
 Appeal, 33 Conn. R. 128.) 
 
 It seems-to be the inclination of the courts to consider the order 
 in respect to time in which the testator and witnesses put their 
 names to a will, as immaterial, provided the instrument is in all 
 other respects legally executed, aud it was held, where witnesses 
 called to attest the execution of a will subscribed their names as 
 witnesses thereto, and the testator afterward, in their presence, 
 duly executed the same', all which was done at one time, and for 
 the purpose of perfecting it as a will, that such will was duly exe- 
 cuted. {O'Brien v. Qalagher, 25 Conn. R. 229.) 
 
 In the state of Connecticut, the probate of a will is conclusive, 
 as to all matters and facts which such probate implies, until it is 
 regularly set aside, in a proper proceeding for that purpose ; and 
 it is held that the probate court is the only tribunal competent to 
 decide the question of the due execution of a will. {Fortune v. 
 Buck, 23 Conn. R. 1. Bush v. Sheldon, 1 Day's R. 170. Judson 
 V. Lalce, 3 ib. 318.) 
 
 It will be observed that there is a great similarity in the statutes 
 of the New England states in respect to the execution of wills. 
 The number of attesting witnesses required is three, and the pro- 
 bate of the will is made conclusive as to its due execution in all 
 of them. In New Hampshire and Vermont, a seal is required to 
 give validity to the will, while it is not necessary in Maine, Massa- 
 chusetts, Rhode Island and Connecticut. No formal publication 
 of the will is necessary in any of these states, and the testator need 
 not subscribe in the presence of the M'itnesses or either of them. 
 
 In the state of New Jersey a will of real estate must be signed 
 by the testator, or the signature acknowledged by him, and the 
 document must be declared to be his last will, in presence of two 
 witnesses present at the same time, who are required to subscribe 
 
TSE' EVIDENCE IN EJECTMEiyT. 519 
 
 t\\cir names thereto as witnesses, in the presence of the testator ; 
 all substantially as in the state of New York. (Elm. Dig. 1855, 
 p. 877, § 24.) Foreign wills may be recorded in the office of the 
 surrogate, in the manner pointed out by statute, when the recoi'd 
 thereof or duly certified copies thereof are made evidence in the 
 same manner and with the same force and effect as though such 
 will had been proved in the ordinary manner. (Elm. Dig. p. 878, 
 §§ 31, 32, 33.) And all wills may be proved and recorded by 
 and before the surrogate, but the probate thereof would not seem 
 to be conclusive, not even upon the parties who have had an 
 opportunity to be heard in the matter, and the same is not ap- 
 pealed from. But it is declared that the record of such wills, and the 
 proofs thereof, shall be of the same force, validity and effect as the 
 like record in the prerogative office, and the transcript of such 
 records certified under the hand and seal of office of the surrogate, 
 shall be received in evidence in every court of the state, and have 
 the same validity and effect as transcripts certified by the register 
 of the prerogative court. (Elm. Dig. pp. 554, 555. And vide 
 B^arrison v. Rowan, 3 Wash. E. 580.) 
 
 The supreme court of the state hold that when a will is admit- 
 ted, to probate and recorded in another state, an exemplified copy 
 of the record, according to the act of congress of March 27, 1804, 
 "Is incompetent evidence to prove title of a person claiming lands 
 under the will, in Kew Jeisey ; that to prove title under a will 
 admitted to pi'obate in another state, the party must produce and 
 prove the original will on the trial ; or if it be lost, the fact of its 
 loss must be established, and secondary evidence given of its con- 
 tents, or he must resort to the proof prescribed by the statute, viz., 
 probate according to the laws of New Jersey, before the proper 
 officer. {Graham v. Whitely, 2 N". J. E. 254.) 
 
 In Pennsylvania, every will is required to be in writing, and, 
 unless the person making the same shall be prevented by the 
 extremity of his last sickness, it must be signed by him at the end 
 thereof, or by some person in his presence, and by his express 
 direction, and in all cases it must be proved by the oaths or affirma- 
 tions of two or more competent witnesses, otherwise the will has 
 no effect. The same, however, may be executed with a mark. A 
 devise to charity, within one month of the donor's decease, is declared 
 to be void. (Purdon's Dig. 1861, pp. 1016, 1017, 1018, §§ 6, 7, 
 22.) The probate of the will is made conclusive as to real estate, 
 
520 LAW OF EJECTXCENT AND ADVERSE ENJOYMENT. 
 
 unless ■withia five years from the date of such probate the same 
 is contested. (Purdon's Dig. p. 275, §§ 12, 13.) 
 
 The courts hold that the probate of a will of real estate is good 
 a,nd sufficient evidence of a devise of real estate, unless revoked 
 bytbe register, annulled by competent authority, or disproved on a 
 trial at law ; and, indeed, that admitting a will to j^robate is a 
 judicial act, the legality of wliich cannot be inquired into collater- 
 ally. {Baker v. McFerran, 26 Penn. E. 211. LovelPs Executors 
 V. Mathews, 24 ib. 330. IlolUday v. Ward, 19 ib. 485.) 
 
 The statute of wills of Delaware provides that a will must be 
 in writing, and signed by the testator, or by some person in his 
 presence, by his express directions, and attested and subscribed 
 in the presence of the testator by two or more credible witnesses, 
 or the same shall be void. The will is exhibited for probate be- 
 fore the register of the county, and the record thereof is made 
 sufficient evidence, although the original will is required to be pre- 
 served in the office. (Rev. Code, 1852, ch. 84, § 3, ch. 89, § 1.) 
 
 The wills act of the state of Maryland is substantially the same 
 as that of Delaware, except that the will must be witnessed by 
 three or four credible witnesses, and the- probate of the will is not 
 conclusive. (1 Md. Code, art. 93, §§ 301, 323. And vide Smith 
 V. Steele, 1 Har. & McH. E. 413. Barly v. Mayer, 10 Wheat. 
 E. 470.) 
 
 In the state of Ohio, the statute of wills is substantially the 
 same as in Delaware, except that the witnesses must see the testa- 
 tor sign the will, or hear him acknowledge the same. And the 
 probate of the will is made conclusive upon all the parties imless 
 contested within two years after the same is proved, except that 
 as to infants, married women and persons out of the state, or of 
 insane mind or in captivity, it is not conclusive until two years 
 after the respective disabilities are removed. (2 Eev. Stat. ch. 
 123, §§ 2, 19. And vide Reynolds v. Shirley, 1 Ohio E. pt. 2, 
 39, 48. Randelaugh v. Shelley, 6 Ohio St. E. 307. Holman v. 
 Rid:dle, 8 ib. 384.) 
 
 In Michigan, the, manner of executing a will is the same as in 
 Ohio, except there is no provision for the acknowledgment of the 
 will by the testator in presence of the witnesses, and the will is 
 declared not to be effectual to pass either real or personal estate, 
 unless duly proved and allowed in the probate court, or on appeal 
 in the circuit court or supreme court, and the probate is conclusive 
 
THE EVIDENCE IN EJECTMENT. 621 
 
 as to its due execution. (2 Comp. Laws, 1857, ch. 92, §§ 2829, 
 2844.) 
 
 The wills act of the state of Indiana is substantially the same as 
 in Michigan. (2. E. S. 1862, part 4, ch. 3, §§ 18, 32. And vide 
 Rogers v. Stevens, 8 Ind. R. 464. Thiebcmd v. Sebastian, 10 ib. 
 458.) In Indiana it has been held that the date of the will is not 
 a material part of it. It may be valid without any date, and the 
 time of executing it may be proved by parol. ( Wright v. Wright, 
 5 Ind. E. 389.) In case the validity of a will is not contested, within 
 the time limited by statute for that purpose, the probate thereof is 
 undoubtedly conclusive. A suit to contest the validity of the will 
 must bef brought in the name of the party in interest. {Nieder- 
 haus V. Heldt, 27 Ind. E. 480.) 
 
 In the state of Illinois, the statute in respect to the execution of 
 a will of real estate is in substance the same as the law of Ohio, 
 except that the probate is not conclusive until the expiration of 
 five years after the date thereof, instead of two years, as in Ohio. 
 (2 Stat, at Large, 1858, pp. 1180, 1181, 1182.) 
 
 In Wisconsin, the will of real estate must be executed by the 
 testator and attested and subscribed in the presence of the testator, 
 by two or more competent witnesses, the same as in Michigan, and 
 the will must be proved and allowed in the county court to be 
 efi"ectual, and the probate of the will is' conclusive. (E. S. of 
 1858, ch. 97, §§ 5, 21.) 
 
 The wills act of Minnesota is substantially the same as that of 
 Wisconsin, and the efi'ect of the allowance and probate of a, will 
 is the same. (Gen. Stat. 1858, ch. 40, §§ 5, 21. E. S. 1866. ch. 47, 
 §§5,17.) 
 
 In the state of Iowa, wills to be valid are required to be in 
 writing, witnessed by two competent witnesses and signed by the 
 testator or by some person in his presence and by his express 
 direction, and the same must be proved and allowed in the county 
 court, and the probate thereof is conclusive. (Eev. Laws of 1860, 
 ch. 100, §§ 2313, 2329.) 
 
 In Missouri, wills must be executed the same as in Iowa, and 
 the witnesses are required to subscribe their names in the presence 
 of the testator, and the probate is conclusive after five years from 
 the date of the proof thereof, except that as to the persons laboring 
 under disabilities the same is not conclusive, until five years after 
 their disabilities are, removed. (Gen. Stat. 1865, ch. 131, §§ 3, 31.) 
 66 
 
622 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Ill JS'ebi'aska, the statute of wills is substantially the same as 
 that of Iowa. (Eevised Stat. ch. 14, §§ 127, 143.) 
 
 In the state of Kansas, the statute in respect to the due execu- 
 tion of wills is substantially the same as that of the state of .iN'ew 
 York, except that the probate is binding upon all parties neglect- 
 ing to contest tlie same after the expiration of two years from the 
 proof thereof, although persons under any legal disability may 
 contest it within two years after the disability is removed. (Gen. 
 Stat. 1868, ch. 117, §§ 2, 19.) 
 
 In the state of Nevada, the statute provides that if no person 
 appears to contest the probate of a will, the court may admit the 
 same to probate on the testimony of one of the subscrbiiig witnes- 
 ses only, if he shall testify that the will was executed, in all par- 
 ticulars as required by law, and that the testator was of sound 
 mind at the time of its execution, and, unless the probate thereof 
 is contested within one year after its date, the same is conclusive, 
 except as to persons under disability, who have one year after the 
 disability is removed to contest the same. (Laws of 1861, ch. 54, 
 §§18,36.). 
 
 In the territory of Colorado, the statute provides that all wills, 
 by which real property is devised, must be in writing, and signed 
 by the testator or testatrix, or by some one in his or her presence, 
 and by his or her direction, and attested in the presence of the 
 testator or testatrix, by two or more credible witnesses, and 
 the probate of the Avill is made conclusive after two years from the 
 date of such probate, except as to persons under disability who 
 may contest the same at any time within two years after the 
 removal of the disability. (E. S. of 1868, ch. 90, §§ 2, 28.) 
 
 In Oregon, the statute of wills is in substance the same as that 
 of Colorado, except that the will is proved in the county court, and 
 the probate is not made conclusive. (Gen. Laws, 1864, ch. 15, 
 and ch. 62, § 4.) 
 
 In the state of California, the statute in respect to the execution 
 of a will is substantially the same as in Colorado. (Wood's Dig. 
 1860, ch. 103, § 3.) The record of a will, and the exemplification 
 by the clerk in whose custody it may be, will be received in evi- 
 dence, and be as efi'ectual in all cases as the original would be if 
 proved, and the probate of a will is conclusive unless contested 
 within one year after the proof thereof. ("Wood's Dig. ch. 29, §§ 
 26, 36.) It is held that the several statutes of wills in the state 
 
THE EVIDENCE IN EJECTMENT. 523 
 
 do not apply to wills executed previous to their passage. {Tevis 
 V. Pitcher, 10 Cal. E. 465.) 
 
 In the state of Virginia, the statute provides that no will shall 
 be valid unless it be in writing and signed by the testator, or by 
 some person in his presence and by his direction, in such manner 
 as to make it manifest that the name is intended as a signature ; 
 and moreover, unless it be wholly written by the testator, the sig- 
 nature must be made or the will acknowledged by him in the 
 presence of at least two competent witnesses, present at the same 
 time ; and the witnesses must subscribe the will in the presence of 
 the testator ; but no form of attestation is made necessary. The 
 probate of a will is conclusive and binding on all parties, unless 
 contested within five years after the will is admitted to probate. 
 (Code of 1849 ch. 122, §§ 4, 34.) 
 
 It has been decided that it is not necessary that a will should 
 be proved in a court of probate, in order to give it validity as a 
 will of lands. The only eifect of such probate, said judge Green, 
 is, to afford one mode of proof that the will is genuine and authen- 
 tic ; but the mode of proof allowable before the passage of the 
 statutes is not abolished or prohibited by them ; that is, by evi- 
 dence on the trial. But if a will offered for probate were con- 
 tested and rejected, this might ,be used thereafter, as the decision 
 of a competent judicial tribunal, and would condemn it forever. 
 {Bagwell v. Elliott, 2 Hand. E. 200. AixAvide Parlcer's Executors 
 V. Brown's Executors, 6 Gratt. E. 554.) 
 
 In the state of "West Virginia, the probate of a will is probably 
 conclusive, unless it is reviewed on appeal within the time limited 
 by statute. (Laws of 1863, ch. 36.) But it is manifest, that, imless 
 and until the proceedings of the court are recorded and signed as 
 required by the statute, they can have no force or efficacy what- 
 ever. {Douglas v. Fay, 1 W. Va. E. 26, 36.) 
 
 In the state of North Carolina, a will of lands must be reduced 
 to writing in the life-time of the testator, and signed by him or 
 some other person in his presence and by his direction, and sub- 
 scribed in his presence by two witnesses at least, no one of which 
 must be interested in the devise of the estate ; or the same must be 
 found among the valuable papers or effects of the deceased person, 
 or must have been lodged in the hands of some person for safe 
 keeping, and being in the handwriting of the deceased person, and 
 his name subscribed thereto, or inserted in some part of such will; 
 
524 LAW OF EJECTMENT AND ADVEBSE ENJOTilENT. 
 
 but if such will is generally known by the acquaintances of the 
 deceased person, and his name subscribed thereto, and it sliall be 
 proved by at least three credible witnesses,that they verily believe 
 such will and every part thereof is in the iiandwriting of the per- 
 son whose will it appears to be, then, and in that case, such will 
 is declared to be sufficient in law to give and convey a sufficient 
 estate in lands. JSTo will is effectual until proved and the probate 
 tiiereof is made conclusive. (Rev. Code, ch. 119, §§ 1, 20.) 
 
 It has been decided, that a paper-writing, having upon it an 
 attestation clause, unwitnessed, will not prevent the same being 
 established as a holograph. {Hill v. Bell, 1 Phillips' Law E. 
 122.) 
 
 In the state of Soiith Carolina, a will of real estate is required 
 to be signed by the testator, or by some other person in his presence, 
 and by his express direction, and attested and subscribed by three 
 credible witnesses, in the presence of the testator. (5 Stat, at Large, 
 p. 106, § 2.) The probate of a will is, prima facie evidence of the 
 validity of the same, but not conclusive. {Executors of Crossland 
 V. Murdoch, 4 McCord's R. 217.) 
 
 In Georgia, the statute in respect to the execution of a will of 
 real estate is the same as in South Carolina ; but the probate 
 of the will is conclusive after the expiration of seven years from 
 the date of the probate, except as to persons under disabilities. 
 (Rev. Code of 1862, §§ 2379, 2390.) 
 
 In the state of Florida, the statute of wills is substantially the 
 same as in South Carolina and Georgia, and the probate of a will 
 is made smx^-^ prima facie evidence of its due execution. (Thomp. 
 Dig. tit. 3, ch. 1, §§ 1, 3.) 
 
 In the state of Alabama, a will must be executed in the same 
 manner as in Florida, except that only two witnesses to it are 
 necessary. (Rev. Code of 1867, § 1930.) A will duly proved may 
 be read in evidence with the same effect as the original will if 
 produced and proved in the same way as it appears to have been 
 proved by the probate. (Rev. Code, § 1948.) 
 
 In Mississippi, a will of real estate must be signed by the testator 
 or testatrix, or by some other person in his or her presence, and 
 by his or her express direction, and, if not wholly written and sub- 
 scribed by the testator or testatrix, it must be attested by three 
 credible witnesses. The probate of the will is made conclusive 
 unless contested in the manner specified by the statute, within 
 
THE EVIDENCE IN EJECTMENT. 625 
 
 the time limited by such statute. (Kev. Opdc of 1857, ch. 60, 
 § 4, art. 34, 43.) 
 
 In Tennessee, a will of real estate is required to be signed by 
 the testator, or by some other person in his presence and by his 
 direction, and subscribed in his presence by two ■witnesses at least, 
 neither of whom must be interested in the devise of the lands 
 claimed ; but a paper-writing, appearing to be the will of a 
 deceased person, written by him, having his name subscribed to 
 it, or inserted in some part of it, and found, after his death, among 
 his valuable papers, or lodged in the hands of another for safe 
 keeping, is declared to be good and valid,. if the handwriting is 
 generally known by his acquaintances, and it is proved, by at least 
 three credible witnesses, that they verily believe the writing, and 
 every part of it, to be his hand. (Code of 1858, tit. 3, ch. 1, 
 art. 1, § 2163.) And the probate of a will of real estate is received 
 as prima facie evidence of the will. ( Weatherhead v. Sewell, 
 9 Humph. E. 282.) 
 
 In the state of Kentucky, it is provided that no will shall be 
 valid unless it is in writing, with the name of the testator 
 subscribed thereto by himself^ or by some other person in his 
 presence and by his direction ; and moreover, if not wholly 
 written by the testator, the subscription must bo made or the will 
 acknowledged by him in the presence of at least two credible 
 witnesses, who must subscribe the will with their names in the 
 presence of the testator. (2 R. S. ch. 106, § 5.) 
 
 It seems, that, by the laws of Kentucky, when the will is 
 wholly in the handwriting of the testator, it is not necessary that 
 the same be witnessed at all. If not wholly written by the testa- 
 tor, then it must be witnessed by two subscribing witnesses, and 
 it has been held that the statute is complied with by the testator 
 simply requesting the witnesses to attest the instrument, without 
 any other action or request by the testator. {Tudor v. Tudor, 17 
 E. Mon. E. 389. Upchuroh v. Upchurch, 16 ib. 112. And vide 
 Montgomery v. Perkins, 2 Met. E. 448. Dougherty v. Dougherty, 
 4 ib. 25. Sechrist v. Edwards, Ib. 163.) 
 
 No'Will in Kentuekj' can be received in evidence until it has 
 been allowed and admitted to record by a county court, and its 
 probate before such court is made conclusive until the same has 
 been superseded, reversed or annulled. (2 E. S. ch. 106, § 29.) 
 The will must'be admitted to probate in the county where the 
 
526 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 testator had liis residence at the time of his death ; and after it is 
 once regularly admitted to probate, there is no way of getting rid 
 of it except by an appeal to the circuit court of the county where 
 the order is made. {Burns v. Edwards, 17 B. Mon. 640 ; McCaU 
 V. Vallandingham, 9 ib. 430. Hiighey v. SidwelVs Heirs, 18 ib. 
 260.) 
 
 In Louisiana, the provisions of the present statute in respect to 
 wills are condensed by Mr. Thornton, in his work on convey- 
 ancing, from which it will be found that wills in that state are 
 nuncupative or open, mistic or olographic. The nuncupative is 
 authentic, or hj public act, ov private. The authentic is received 
 by a notary and three witnesses, resident in the parish, ov five non- 
 residents of the parish. The private is executed not before the 
 notary but with five witnesses in the parish, or seven out. In 
 the country, three witnesses in the parish, ov five resident out of it, 
 suffice. It must be signed by the testator. If he declares he 
 knows not how, or is unable, express mention of his declaration, 
 as also the cause that hinders him from signing, must be made in 
 the act. In either case, it must be read by the testator to the wit- 
 nesses, or by one of the witnesses to the rest. The mistic will is 
 written by the testator, or some other person by his order, and 
 presented closed to a notary public and seven witnesses. He must 
 then declare to the notarjr, in the presence of the witnesses, that 
 the paper contains his will. The olographic will is wholly written, 
 dated and signed by the testator. If it be sealed up, he ought to 
 write on the cover : "This is my olographic will," and subscribe 
 his name. It requires no form, and may be made every where, 
 even out of the state. (Thornton on Conv. 191, 192. Kxx^vide 
 Louisiana Civ. Code, arts. 1567-1589.) 
 
 It has been held that a mistic will is defective if the testator 
 neglects to state on the superscription of the envelope containing 
 the paper, that it was closed, sealed or presented to the notarj' by 
 the testator. {Stafford v. Wilcox, 10 La. E. 319.) Eut a will 
 duly admitted to probate is held to.be at least prima facie evi- 
 dence of its validity, if the probate is not conclusive. {Donaldson 
 V. Wailie, 1 La. E. 144.) 
 
 In the state of Arkansas the statute of wills is substantially the 
 same as that of New York, with this addition, that when the entire 
 body of the will, and the signature thereto, shall be written in the 
 proper handwriting of the testator or testatrix, the same may be 
 
TEE EVIDENCE IN EJECTMENT. 527 
 
 established by the unimpeachable evidence of at least three dis- 
 interested witnesses to the handwriting and signature of each 
 testator or testatrix, notwithstanding there may be no attesting 
 witnesses to such will ; but no will without such subscribing wit- 
 nesses can bo pleaded in bar of a will subscribed in due form, as 
 prescribed in the act. (Dig. of Ark. Laws, 1858, ch. 180, § 4. 
 And ^mde Rogers v. Diamond, 13 Ark. R. 474. Abraham v. 
 Wilhins, 17 ib. 292.) 
 
 Tlie probate of a will is not conclusive, but the will may be con- 
 tested in any court of law, after being admitted to probate. (Dig. 
 Ark. Laws, ch. ISO, § 30.) Except that the probate will be con- 
 clusive at the expiration of five years after the will was proved, 
 unless contested, with a provision in favor of persons laboring 
 under disability. (Dig. Ark. Laws, ch. 180, § 34.) 
 
 In the state of Texas the statute in respect to the execution of a 
 will is the same in substance As that of Kentucky ; and wliere the 
 will is not wholly written by the testator, it must be attested by 
 two Or more credible witqesses, above tlie age of fourteen years, 
 subscribing their names in his presence. (Pasehal's Annotated 
 Dig. art. 5361.) And in Texas the probate of the will is conclu- 
 sive of its due execution, unless it is contested in the district court 
 within four yeai-s after it is proved. (Pasehal's Annotated Dig. 
 art. 1262.) The probate of the will cannot be attacked collater- 
 ally. {Box v. Lawrence, 14 Tex. R. 555, 556.) 
 
 Such is an epitome of the essential provisions of the statutes of 
 the several states in respect to the execution and probate of wills. 
 From this resume it will appear that in all cases the testator must 
 be of sound and disposing mind, and certain other rules are appli- 
 cable to wills in all of the states. It will also appear that in the 
 states of Connecticut, Florida, Georgia, Maine, Maryland, Massa- 
 chusetts, Michigan, Minnesota, Mississippi, New Hampshire, New 
 Jersey, North Carolina, Rhode Island, South Carolina, Vermont 
 and Wisconsin, three attesting witnesses are required to give valid- 
 ity to the will; while in Alabama, Arkansas, California, Colorado, 
 Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, 
 Nebraska, New York, Ohio, Oregon, Tennessee, Texas and Vir- 
 ginia, only two attesting witnesses are requisite. The laws of 
 Louisiana are peculiar, and they may be changed by the proper 
 authorities now revising the laws of that state. In Arkansas, 
 Kentucky, Mississippi, North Carolina, Tennessee, Texas and Vir- 
 
528 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ginia, where the will is wholly written and signed by the testator, 
 an exception is made in respect to requiring attesting witnesses to 
 make it effectual and valid. In Vermont and New Hampshire a 
 seal is required ; while in Pennsylvania it is necessary to prove 
 the will by at least two witnesses, but the statute does not make 
 it necessary that they should have attested the same. And in 
 respect to the effect of admitting a will to proof, in most of the 
 states, the probate of the will is made conclusive evidence of the 
 due execution of the same ; and in several, and, perhaps, a mtgor- 
 ity, the will is not effectual for any purpose until it has been 
 admitted to probate ; while in Maryland, New York, North Caro- 
 lina, South Carolina, Tennessee, and some others, the English or 
 common law doctrine prevails, or the probate of a will of realty is 
 received a,s prima faoie evidence only of the due execution of the 
 will, and its validity may be contested in an action brought by the 
 devisee of real estate to recover posSession thereof. 
 
 CHAPTER XXX. 
 
 THE EVIDENCE IN THE ACTION OF EJECTMENT — PEOOFS WHEN THE 
 PAETY CLAIMS THE LAND UNDEE AN EXECUTION — THE SAME 
 
 WHEN THE CLAIM IS BY VIETUE OF A SALE FOE TAXES THE 
 
 PEOOFS WHEN THE CLAIMANT IS aUAEDIAN THE PEOOFS WHEN 
 
 THE CLAIMANTS AEE CHUECH OE PAEISH OFFICEES — THE PEOOFS 
 WHEN THE PAETY CLAIMS UNDEE THE OEDINAEY CONVEYANCE. 
 
 The proceedings by writ of elegit^ for the purpose of obtaining 
 satisfaction of a judgment, are little known in this country, and 
 perhaps are never resorted to at the present time in any of the 
 United States — certainly in none except in Virginia and Dela- 
 ware. The fieri facias is the uniform process to sell lands to make 
 the money awarded by judgment in this country, and the elegit is 
 generally abandoned. But in England the writ of elegit is quite 
 common, and questions arising under such process occasionally 
 arise at the present day. 
 
 "When an ejectment is brought by a tenant by elegit, and the 
 debtor is himself in possession of the land, the only evidence neces- 
 sary is an examined copy of the judgment roll, containing the 
 award of the elegit, and the return of the inquisition. But if the 
 
TEE EVIDENCE IN EJECTMENT. 529 
 
 J)ossession is in a third person, the lessor must either show that 
 such third person came into possession under the debtor, and tliat 
 his right to the possession has ceased ; or (sliould the party in pos- 
 session liold adversely to the debtor) be prepared witli evidence of 
 his debtor's title. (Adams on Eject. 3.53-5.) And in addition, a 
 tenant by elegit, in order to recover possession of the land extended, 
 must prove the judgment, as well as the elegit (Buller's N. P. 104. 
 2 Peake's Ev. 315.) 
 
 In an action of ejedtment by a purchaser under a sheriff's sale 
 on execution, to recover the possession of the land, it is incumbent 
 iipon the plaintiff to produce the sheriff's deed (in those states 
 where a deed is required by statute) and the execution, and also 
 the judgment record or roll, or an exemplified copy of the judg- 
 ment on which the execution issued. Papers attached together 
 by the clerk, but not including any summons or pleadings, cannot 
 be a judgment roll under the ITew York practice ; and there can 
 be no jadgment under that practice, capable of being docketed, 
 without a roll. • The proof must establish a valid judgment and 
 execution, the sale of the land by virtue of the execution, and a 
 valid deed by the sheriff to the purchaser, in order to entitle the 
 claimant to recover in the action of ejectment, either against the 
 defendant in the execution or any one else in possession ; and the 
 rule is the same in several of the states. (Jackson v. Ilasbrouck, 
 12 Johns. E. 213. Townshend v. Wesson, 4 Daer's E. 342. Fen- 
 wick V. Floijd, 1 Har. & Gill's E. 172. Beti v. Morse, 7 Ilalst. 
 E. .331.) It has been held by the English courts that the writ of 
 execution, without the judgment, is a. sufficient title to the vendee 
 of the sheriff. (Boe v. Murlcss, 6 Maule & Selw. E. 113. Doe 
 V. Thorn, 1 ib. 425.) But this will not answer according to the 
 practice which prevails in the United States. Here the judgment 
 must be proved, as well as the execution, whoever the party may 
 be claiming under the sheriff's sale. It is not necessary, however, 
 for the claimant to prove that the sheriff filed the certificate of sale 
 required by the statutes of New York. The courts hold that such 
 filing of the certificate is not a condition precedent to the giving 
 of a deed by the sheriff, and passing the title ; and that the sheriff's 
 omission should not prejudice the purchaser. The statute is direct- 
 ory to the sheriff, but the certificate is not necessary tp the title 
 of the purchaser. {Jackson v. Page, 4 Wend. E. 685. Jackson 
 v. Toung, 5 Cow. E. 269.) And, as a general rule, it may bo 
 67 
 
630 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 affirmed, that the mere neglect of the sheriff to comply with the 
 requisitions of any provision of the statute in respect to the sale 
 of real estate upon execution which are directory simply, will not 
 affect the validity of any sale made to a purchaser in good faith, 
 without notice of the omission. Sometimes tliere is a statute to 
 remedy such omission in favor of honajtde purchasers ; but without 
 the aid of a statute, the rule seems to be well settled, that the pur- 
 chaser will not be allowed to suffer by reason of such omission. 
 
 The claimant in ejectment, under a purchase at sheriff's sale, on 
 a judgment against a party not in possession of the lands sold, must 
 prove, against the one found in possession, that the party against 
 whom the judgment was rendered had some right, title or interest 
 in the premises sold, to which the judgment attached. When the 
 defendant in the execution is tlie possessor, that is of itself suffi- 
 cient; for the reason that actual possession \s, prima facie evidence 
 of a legal title. The defendant will not be permitted to show title 
 in another, for the plaintiff comes into exactly such estate as the 
 debtor had ; and if it was a tenancy, the plaintiff will be a tenant 
 also, and estopped in a suit by the landlord from disputing his 
 right, in the same manner as the original tenant. But where the 
 defendant in the execution is not in possession, then it is incum- 
 bent upon the claimant to prove that the defendant had such an 
 interest in the premises in dispute as was liable to the lien of the 
 judgment. And it has been held not enough to show that such 
 party held adversely for less than twenty years, but abandoned the 
 premises before judgment, to which she never returned ; though, a 
 few months after abandoning, she conveyed to the defendant in the 
 ejectment, who afterward entered under the. conveyance. {Jack- 
 son V. Town^ 4 Cow. K. 599.) Usually statutes exist declaring 
 upon what a judgment shall attach and become a lien ; but the 
 principles above laid down are applicable in all cases of sales of 
 real estate under executions ; although tlie statutes of the state 
 should be examined, in order to ascertain the nature of the estate 
 which may be sold. 
 
 In one case, decided by the supreme court of the United States, 
 where there was a deed of land to a debtor in trust which con- 
 veyed to him a naked legal title, it was held, that he took under 
 it no interest that could be seized and sold by the marshal upon 
 execution ; and that a purchaser at such sale could hot maintain 
 aa action of ejectment under the marshal's deed. And it was 
 
THE EVIDENCE IN EJECTMENT. 631 
 
 further held, that it would not aid such title to show the fraudu- 
 lent character of the trusts, as against creditors. Such evidence 
 could not enlarge his legal interest beyond the terms of the deed. 
 It was suggested by the learned chief justice, who delivered the 
 opinion of the court, that an inquiry into the validity of such trusts 
 in an action of ejectment would not only be inconsistent with the 
 established principles and, jurisdiction of courts of common law, 
 but also inconsistent with that great fundamental rule in the 
 administration of justice, which requires that every one shall have 
 an opportunity of defending his rights before judgment is pro- 
 nounced against Iiim. This reasoning was considered pertinent, 
 from the fact that the cestuis que trust, whose interest in the lands 
 claimed it was sought to impeach, were not before the court. The 
 fact is, that, in order for the purchaser under an execution to 
 recover in ejectment, he must show that the debtor had a bene- 
 ficial interest in the property sold, as well as that the property 
 was legally sold. {Lessee of Smith v. McCann, 24 How. U. S. 
 E. 398.) 
 
 In the state of Connecticut, a copy from the records of the 
 superior court, of an execution returned levied upon land, and of 
 the town clerk's certificate that it is recorded in the town records, 
 is lield to be good evidence of title. But an execution not recorded 
 in the office from whence it issued, although recoi-ded in the 
 records of the town clerk, cannot be admitted as evidence of title. 
 {Barney v. Guttler, 1 Boot's E. 489. Otis v. Alel, 2 ib. 521.) And 
 in Connecticut, it is held, that, if the plaintiff's title is the levy of 
 an execution, the plaintiff must produce the judgment if required. 
 {Lillie V. Wilson, 2 Eoot's E. 51Y.) In ejectment brought in Con- 
 necticut, where*the plaintifi" claimed title, hy the levy of an execu- 
 tion, and where the action was commenced after the return of the 
 execution, and before it was recorded at full length in the office 
 of the clerk of the court whence it issued, a copy of the record was 
 held inadmissible, as the title to the land, under the execution, was 
 not complete until so recorded. {Benton v. Pond, 5 Day's E. 160.) 
 
 In ejectment in Pennsylvania, a sheriff's deed of sale, under a 
 venditioni exponas, is admissible in evidence though not recorded j 
 the acknowledgment in court, and the registering it in the pro- 
 thonotary's office, being held a sufficient recording within the act 
 requiring the deed to be recorded, {Shrider v, NarQon, 1 Dallas' 
 R. 68.) t 
 
532 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In ejectment in the state of New York, the plaintiff, in making 
 out title under a sheriff's deed, proved that the judgment debtor 
 was in possession of the premises several years before the judg- 
 ment, and that the defendant held under him; the court held, 
 that the defendant was estopped to show title out of the judgment 
 debtor; and if he had a written lease which would affect his 
 rights, he should produce it without notice from the other party. 
 (Jackson v. Jones, 9 Cow. K. 182.) In New York it is necessary 
 that a purchaser under a sheriff's sale, in ejectment against the 
 debtor, should prove a conveyance from the sheriff; but this is not 
 indispensable in all of the states. It is only necessary in some of 
 the states that the plaintiff produce the judgment and the execu- 
 tion, and prove the sale of the land, which may be done either by 
 a deed from the sheriff or a return of the execution. And still, 
 in these cases, in the absence of a deed from the sheriff, and his 
 return to the execution, it seems that a memoraudnm in writing 
 of the sale must be produced, to take the case out of the statute 
 of frauds. ( Vide Fenwick v. Floyd, 1 Har. & Gill's E. 172. Ben 
 V. Morse, 1 Halst. E. 331.) 
 
 In the state of Connecticut, the manner in which real estate can 
 be taken on execution, is regulated by statute ; and as the proceed- 
 ing is in invitum, the courts have repeatedly decided, that the 
 provisions of the statute must be strictly complied with, or the 
 purchaser at the sheriff's sale does not get a valid title. ( Vide 
 Camp V. Smith, 5 Conn. E. 80. Mitchell v. Kiriland, 7 ib. 229.) 
 It may be inferred, however, from some of the late decisions, that 
 the court do not at present, feel disposed to carry this principle as 
 far as formerly ; and the propriety of pushing it to au extreme has 
 been questioned. The proceeding is, in reality, irvinvitum, as has 
 been pertinently said, to the creditor as well as the debtor. The 
 creditor is justly entitled to his pay in money, instead of which, he 
 is obliged to lose his claim, or to take land. The questions, too, 
 that give rise to much litigation, are rarely between creditor and 
 debtor, where alone there is any foundation for the principle, but 
 generally between two creditors. Such is the reasoning of an 
 eminent lawyer, who, several years ago made a digest of the 
 reports of the highest judicial tribunal of the state, and in deference 
 to such considerations doubtless, confirmatory statutes have been, 
 from time to time, passed, to quiet the titles to real estate, rendered 
 doubtful, or void, by the omission of some requisite in the levy of 
 
THE EVIDENCE IN EJECTMENT. 533 
 
 an execution ; and such acts have been held to be constitutional, 
 although they have a retrospective effect. ( Vide Mather v. Chap- 
 man., 6 Conn. R. 54. Beach v. Walker, 6 ib. 100.) In the levy 
 of the execution, the acts whieh the law imposes upon the officer 
 must all appear in his return, either expressly or by fair implica- 
 tion, to have been performed. But the officer will be presumed to 
 have done his duty, until the contrary appears. And where the 
 words admit of different constructions, that will be preferred which 
 is most consonant to law. {Whittlesey v. Starr, 8 Conn. R. 134.) 
 
 It has been held by the supreme court of errors of the state that 
 the levy of an e.\-ecution upon the real estate of the debtor, who 
 had removed from the state before the service of the same, is 
 invalid, though made by direction of the creditor, where it does 
 not appear from the officer's return, either that personal property 
 ■\vas demanded by him, or that none such could be found, or that 
 any search was made for such estate before the levy upon the land. 
 It seems that no presumption will be indulged that the levy of an 
 execution upon real rather than upon personal property, is for 
 the benefit of the debtor. And it was decided that an officer's 
 return of the levy of an execution upon real estate should, upon 
 its face, without the aid of extrinsic facts, not so referred to as to 
 be made a part of the return itself, show with reasonable certainty 
 the quantity of land set off, and the valuation which the appraisers 
 put upon it. And the officer's return failing to show substantially 
 these facts, in an action of ejectment ; and also a bill in equity to 
 obtain the legal title to the land sold, both causes being heard 
 together ; the court held the levy and proceedings under it, invalid, 
 and gave judgment against the claimant. {Coe v. Wiokhain, 33 
 Conn. E. 389.) Of course, there can be no presumption that will 
 sustain a levy made in contravention of the provisions of a plain 
 statute ; however much the courts are inclined to presume in favor 
 of official acts. 
 
 The doctrine of the courts of Massachusetts in respect to the 
 proof requisite to sustain the title of a purchaser of real estate, at 
 sheriff's sale under an execution, is about the same as that of Con- 
 necticutt. And it has been held in Massachusetts in a real action 
 to recover land purchased at sheriff's sale, that where the sheriff 
 failed to certify in his retnrn upon an execution, which he had 
 extended on the real' estate of the judgment debtor, that the 
 appraisers, appointed under the statute, were discreet and disin- 
 
534 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 terested freeholders, the extent was void. By the statute these 
 qualifications are essential and indispensable, and the court would 
 not admit extrinsic proof that they did exist, for the reason that it 
 was held they should appear by the return of the sheriff. ( Wil- 
 liams V. Amory, 14 Mass. E. 20.) 
 
 In a much later case, the supreme judicial court decided that 
 the officer who levies an execution on real estate, is not authorized 
 by the revised statutes of the state to appoint an appraiser for 
 the debtor, where the debtor is not a resident of the state, but only 
 where he neglects to appoint one; and where the officer appoints 
 an appraiser for the debtor, the reason thereof must appear in the 
 return, either in the words specified in the statute, or in equivalent 
 language ; otherwise the levy will be invalid. The court further 
 held that where land, which has been conveyed fraudulently as 
 against creditors, is levied upon by a creditor of the grantor, and 
 such creditor thereupon brings a writ of entry against the grantee 
 to recover possession of the land, the grantee may defend against 
 the action, by showing that the levy is void for some defect therein. 
 {Leonard v. Bryant, 2 Gush. R. 32.) And there are many cases 
 in the reports of the Massachusetts courts, to show that the court 
 had uniformly adhered to the opinion, that every thing made 
 necessary by the statute to pass the property, either in land or 
 chattels, must appear by the return of the officer to have been done. 
 {AUen V. Thayer, 17 Mass. E. 299. Wellington v. Gale, 13 ib. 
 483. Davis v. Maynard, 9 ib. 242. Perry v. Dover, 12 Pick. 
 E. 211.) 
 
 There is a great diversity of practice in the several states in the 
 method of levying execution upon real estate, biit it is not con- 
 sonant with a work like this to give any thing more than some 
 general principles which are supposed to have a somewhat general 
 application. Usually, land cannot be taken but in default of per- 
 sonal estate, to satisfy the execution. Such is the law in Dela- 
 ware, Illinois, Indiana, Kentucky, Michigan, Mississippi, New 
 York, North Carolina, Ohio, Pennsylvania, Ehode Island, Ten- 
 nessee, Texas, and Oregon, and probably in most of the other 
 western states. In Connecticut and Vermont, the real estate of 
 the judgment debtor may be taken to satisfy the execution, unless 
 he shall tender sufficient personal property to satisfy the same. 
 And there are restrictions upon the right to levy the execution 
 upon the real estate of the debtor, in nearly all of the states, which 
 
TBE EVIDENCE IN EJECTMENT. 535 
 
 will be ascertained by reference to the statutes of the several 
 states upon the subject. In some of the states the sale of the 
 land upon the execution is absolute, Avhile in others the debtor 
 has a specified period in which to redeem ; and in all cases it 
 should be made to appear by the claimant in the action to recover 
 the possession of the land, that the conditions of the statute have 
 been answered ; and this must appear by the sheriff's return to the, 
 execution, or by his deed executed in conformity with the statute 
 requiring it ; always excepting those facts which are presumed in 
 favor of a public officer, and excepting those provisions of a statute 
 which are directory to the officer merely. A very intelligible 
 synopsis of the statutes of the several states in respect to applying 
 the lands of debtors in satisfaction of their debts, by the forms 
 of law, may be found in Governor Washburne's valuable treatise 
 on the American Law of Eeal Property, third edition. (2 Wash. 
 Eeal Prop. 27, note.) 
 
 It may be added that where the statute provides for a convey- 
 ance by the sheriff to perfect the sale to the purchaser under an 
 execution, the sheriff's deed, executed after the time to redeem 
 expires, relates back to the time of the sale. . ( Wright v. Douglass, 
 2 K Y. E. 373.) 
 
 In respect to the proof of title in cases of sales of lands for 
 non-payment of taxes assessed thereon, it may be remarked 
 that the power of taxation is inherent in every state and is 
 essential to the maintenance of government ; but it is universally 
 exercised in conformity to express provisions of statute. The 
 power of legislation and consequently of taxation operates on all 
 the persons and property belonging to the body politic. This is 
 an orignal principle, which has its foundation in society itself. It 
 is granted by all, for the benefit of all. It resides in government 
 as a part of itself, and need not be reserved where property of any 
 description, or the right to use it in any manner, is granted to 
 individuals or corporate bodies. However absolute the right of 
 an individual may be, it is still in the nature of that right, that it 
 must bear a portion of the public burdens, and that portion must 
 be determined by the legislature. But it must be borne in mind 
 that this power to sell lands for the payment of taxes is a naked 
 one, and not coupled with any interest in the land in the officer 
 who effects it, and the power is always exercised under a special 
 authority, and the proceedings are ex parte. In these cases, therer 
 
536 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 fore, the principle, is well settled, that great strictness is required; 
 To divest an individual of his property, against his consent, every 
 substantial requisite of the law must be shown to have been com- 
 plied with. No presumption can be raised in behalf of the officer 
 who sells real estate for taxes, to cover any radical defect in his 
 proceeding ; and the proof of regularity in the procedure devolves 
 jipon the person who claims under the officer's sale. In all cases 
 wliere a naked power is given by law to an officer or other person, 
 it must be strictly pursued, especially if by such proceedings the 
 estate or rights of others may be forfeited or lost, and it devolves 
 on him who claims under exercise of such power to show that it 
 was in all respects exactly pursued. In conformity' with this 
 doctrine, where lands are sold by an officer for non-payment of 
 taxes it is incumbent on the purchaser to show that all the steps 
 have been regularly taken which the law requires. Every statute 
 authority in derogation of the common law, to divest the title of 
 one and transfer it to another, must be strictly pursued or the title 
 will not pass ; and unless the return of the officer who makes 
 the sale, or the conveyance that is given to the purchaser by the 
 officer, is made evidence of the regularity of the proceedings, 
 the fact that they were regular must be proved, and the onus 
 rests on the purchaser. He must show, step by step, that every 
 thing has been done wliich the statute makes essential to the due 
 execution of the power. It matters not that it may be difficult 
 for the purchaser to comply with such a rule. It is his business 
 to collect and preserve all the facts and muniments upon which 
 the validity of his title depends. It has been accordingly decided 
 that where lands have been sold for the non-payment of a direct 
 tax imposed by an act of congress, the marshal's deed is not 
 prima facie evidence that the prerequisites required by law, had 
 in fact been complied with. ( Williams v. Peyton'' s Lessee, 4 
 Wheat. R. 77.) And in a still earlier case decided by the supreme 
 court of the United States, it was held that a vendee at a col- 
 lector's sale for taxes must prove the authority to sell, that the 
 collector must act in conformity with the law, and the purchaser 
 is bound to inquire whether he had so acted. Marshall, C. J., 
 says: "It is true that full evidence of every minute circumstance 
 ought not, especially at a distant day, to be required. From the 
 establishment of some facts it is possible others may be presumed, 
 and less than positive testimony may establish facts. * * * 
 
THE EVIDENCE IN EJECTMENT. 537 
 
 But it is incumbent on the vendee to prove the authority to sell." 
 {Stead's Executor v. Course, 4 Cranch's R. 403.) And in another 
 early case in the same court, the action was ejectment, brought 
 against the tenant in possession, claiming title under a tax sale 
 by virtue of the act of congress in 1798, imposing a direct tax. 
 The defendant produced his deed from the collector, and also the 
 tax list, and the general list of lands in the district, sliowing the 
 assessment of the tax upon the premises, and the advertisement of 
 sale, but did not prove that the collector had caused a copy of tlie 
 list of property, with a statement of the amount of the tax, and 
 a notification to pay the same, to be published for sixty daj-s in 
 four gazettes of the state, pursuant to the eleventh section of the 
 act ; and the circuit judge charged the jury that the sal^ was 
 void, and the judgment was affirmed upon error. {Parker v. 
 Beebe's Lessee, 9 Cranch's K. 64.) So also it was held by the 
 same distinguished court, that nnder the laws of Tennessee, where 
 lands are sold by a summary proceeding for the payment of taxes, 
 it is essential to the validity of the sale and the deed made 
 thereon, that every fact necessary to give the court jurisdiction 
 should appear upon the record, and further that the execution by 
 a public officer of a power to sell lands for the non-payment of 
 taxes must be in strict pursuance of law under which it is made, 
 or no title is conveyed ; and that it is essential to the validity of a 
 sale of land for taxes under the laws of Tennessee, that it shall 
 appear on the record of the court by which the order of sale is 
 made, that the sheriff had returned there were no goods or chat- 
 tels of the delinquent proprietor out of which the taxes could be 
 made ; and that the publications which are required by law to be 
 made subsequent to the sheriff's return, and previous to the order 
 of sale, are indispensable preliminaries to a valid order of sale ; 
 the court laying down the rule that in summary proceedings, 
 where the court exercises an extraordinary power under a special 
 statute, which prescribes its course, that course ought to be 
 strictly pursued, and the facts which give jurisdiction ought to 
 appear on the face of tlie record ; otherwise the proceedings are 
 not merely voidable, but absolutely void, as being coram non 
 judice. {M' Clung v. Eoss, 5 "Wheat. E. 116. Thatcher v. 
 Powell, 6 ib. 119.) 
 
 In accordance with the general rule in such cases, it was repeat- 
 edly held, in cases arising under the' tax laws of the state of New 
 68 
 
538 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 York, prior to the passage of the act making the comptroller's, 
 deed of lands sold by him for taxes presumptive evidence that the 
 sale and all proceedings prior thereto, from and including the 
 assessment of the land, etc., were regular, that it was incumbent 
 upon the grantee of the comptroller in such case to prove all 
 the facts necessary to give the comptroller jurisdiction to execute 
 such a conveyance, including the due assessment of the land, the 
 return of the collector that the taxes remained unpaid, etc. 
 (Hickox V. Tallman, 38 Barb. E. 608. Varioh v. Tollman, 2 ib. 
 113. Tallman v. White, 2 N. Y. E. 66. Beekman v. Bigham, 5 
 ib. 366.) 
 
 But it is not necessary to pursue the discussion further. The 
 authorities referred to will suiHce to show, that, in order to make a 
 good tax title, the party claiming under it must show the authority 
 by which the sale was made, and all of the proceedings are to be 
 construed strictly ; and, except in those cases where the principle 
 of the common law ia modified by statute, the proceedings required 
 by the statute must all be proved. (And vide Jackson v. Shepard, 
 7 Cow. E. 88. Weyand v. Tipton, 6 Serg. & Eawle's E. 332. 
 Srioin V. Helme, 13 ib. 151. Ballance v. Forsyth, 13 Howard's 
 U. S. E. 23. Gaines v. Stiles, 14 Pet. E. 322. Holt v. Hemphill, 
 3 Ohio E. 232. Tolman v. Emerson, 4 Pick. E. 162. Alvord v. 
 Collier, 20 ib. 418. Sutton v. Calhoun, 14 La. An. E. 209. Har- 
 rington V. Worcester, 6 Allen's E. 576. Abell v. Cross, 17 Iowa 
 E. 176. Conway v. Calle, 37 111, E. 88.) 
 
 The guardian in socage of an infant, or a testamentary or other 
 guardian of an infant having the usual powers by statute of a 
 guardian in socage, may maintain an action of ejectment against 
 any person entering upon the lands of his ward without right. 
 This is held to be so for the reason that a guardian in socage has 
 the legal custody of the land of the infant, and is entitled to the 
 profits for his own benefit. He is in possession of such lands by 
 right, and may, therefore, of course, maintain the action of eject- 
 ment against any person entering upon him without right. But 
 the abolition of all tenures in this country has destroyed guardian- 
 ship in socage as recognized at common law; but guardians for 
 infants are appointed under the policy of all the states, who possess 
 the same general powers in respect to the lands of their wards as 
 are conferred upon the guardian in socage at common law. ( Vide 
 Holmes v. Seeley, 17 "Wend. E. 75.) 
 
THE EVIDENCE IN EJECTMENT. 539 
 
 Where the claimant in the action of ejectment is a guardian, he 
 must prove the title to the lands in dispute to be in his -ward, and 
 produce a regular appointment, from a competent tribunal, as the 
 guardian of his ward. If he be a testamentary guardian, appointed 
 by the parent of the infant under the statutes of the state, he must 
 prove the seisin of the parent ; the due execution of the deed or will, 
 and the minority of the ward at the time of the demise. 
 
 And it may be affirmed, that in all cases where the claimant in 
 ejectment brings his action in a representative character, he must 
 be prepared to prove the relation which he sustains to the party 
 for whose benefit the action is brought, as well as the other mate- 
 rial facts necessary to be established in the action. That is to say, 
 if he be the assignee of a bankrupt, or of an insolvent debtor, he 
 must prove the title of the bankrupt or insolvent, and a regular 
 and valid assignment of the estate to him ; and if tlie ejiectment is 
 brought by a personal representative, he must show his representa- 
 tive character by producing the probate of the will, or letters of 
 administration, in addition to the proof of his testator's or intes- 
 tate's title. ( Vide Doe v. Andreios, 4 Bing. E. 348. Garret v. 
 Zister, 1 Lev. R. 25. i:iden v. Kiddell, 8 East's E. 187. Doe v. 
 Edwards, Y Adolph. & EIL E. 240.) 
 
 If the action of ejectment is brought by a parson for the par- 
 sonage-house, glebe or tithes under the English laws, the claimant 
 must prove his admission, \ustitution and induction, bvtt he need 
 not show a title in his patron, for institution and induction, 
 although upon the presentation of a stranger, are sufficient to put 
 the rightful patron to his cjuare impedit. {Snow v. Phillips, 
 1 Sid. E. 220. Bull. :N". P. 105.) Something akin to this is 
 found in the parish system of several of the states, where the 
 parsonage and other lands devoted to pious uses are held by the 
 minister in charge, in fee simple, in the right of his parish or 
 church. In these cases, where the minister in charge is regularly 
 dismissed, or is removed by death, his successor, when settled, will 
 succeed to all the rights of the former, and can recover the lands 
 which belong to the parish. {Jewett v. Burroughs, 15 Mass. E. 
 464.) And on the resignation, deprivation or death of the minis- 
 ter, the fee of the parish lands is in abeyance until there be a suc- 
 cessor. ( Weston V. Hunt, 2 Mass. E. 500. Dillingham v. Snow, 
 5 ib. 647. Brunswich v. Dunning, 7 ib. 445. Brown v. Porter, 
 10 ib. 93. Cheever y. Pearson, 16 Pick. E. 266.) 
 
540 LAW OF EJECTMENT AND ADVERSE ENJOYJUENT. 
 
 As a general rule, in the American states, statutes exist under 
 whicli religious corporations are created, and in such cases tlie 
 corporation, and not the trustees thereof, holds the real estate, 
 and an action to recover the possession of the lands belonging to 
 the corporation must be prosecuted in the corporate name of the 
 society. And where a religious corporation brings the action, it 
 is necessary to prove on the trial that the society has been duly 
 incorporated, and the titlo of the corporation to the land in dis- 
 pute; except that frequently a statute exists declaring that when 
 a corporation is the plaintiff in an action, its corporate existence 
 need not be proved, unless specially denied by the defendant in 
 his answer or plea. 
 
 Where the claimant in ejectment relies upon a title to the land 
 in dispute by ordinary gi-ant, it is necessary that he should prove 
 upon the trial of the action a good and valid conveyance to him 
 before the commencement of the suit from some person, persons 
 or corporation, in whom was the legal title to the land at the date 
 of the conveyance. It will be remembered that in this country the 
 universal method by which one individual aliens or conveys his 
 land to another is by a formal instrument in writing, under seal, 
 called a deed. At common law it was not necessary that the 
 deed be signed ; it was only required that the instrument he 
 sealed and delivered. But in all, or nearly all, of the American 
 states the deed is not complete and effectual until it is signed as 
 well as sealed and delivered. The deed must be sealed, or it must 
 have something upon it answering to a seal, according to the law 
 of the state where the land lies. As to what will answer as a seal 
 for a deed, the rule is by no means uniform. Sometimes the 
 statute requires that some adhesive substance be applied to the 
 paper or other material on which the contract is written ; some- 
 times an impression of a seal upon the material is all that is 
 required ; and sometimes a scroll with a pen is made sufficient. 
 But it is not the purpose in this place to give all of the requisites 
 of a good and valid conveyance ; suffice it to say, that the claimant 
 in a real action must prove such a deed as is required by the laws 
 of the state where the land lies ; and the burden of proof of the 
 formal execution of the deed is always upon the party claiming 
 under it. Any particular formalities required by statute, as essen- 
 tial to the validity of the deed, snch as a stamp, and the like, must 
 be shown to have been complied with. 
 
THE EVIDENCE IN EJECTMENT. 541 
 
 If a deed under •wliich the plaintiff claims in ejectment has been 
 properly proved or acknowledged, and duly registered or recorded, 
 an exemplified copy thereof will be admitted in lien of the original 
 deed. But in the absence of snch exemplified copy, the original 
 must be produced and proved upon the trial, unless it has been 
 lost, when it may be proved as a lost instrument. If the deed has 
 appended to it a certificate of proof or acknowledgment, which is 
 in accordance with tlie statute, the same may be read without other 
 evidence. In the absence of such certificate, the plaintiff must 
 prove the execution of the deed by the subscribing witness, if he 
 can be produced; and if the subscribing witness is dead, or cannot 
 be produced, the deed may be proved in the same manner as other 
 writings of a private nature may be proved in similar circumstances. 
 In all cases it must appear that the deed has been executed in accord- 
 ance with the statute of the state where the land lies. If the instru- 
 ment, when produced, appears to have been altered, or there are 
 any grounds of suspicion apparent upon its face, the party producing 
 it must explain its appearance. But the general rule is, that if 
 nothing appears to the contrary, the alteration will be presumed 
 to have been made at the time the deed was executed. ( Vide 
 Bailey v. Taylor, 11 Conn. R. 531, 53i. Gooch v. Bryant, 1 Shep- 
 ley's R. 386, 390. Crabtree v. OlarJc, 7 ib. 337. Pullen ^.Hutch- 
 inson, 12 ib. 249, 254r. Doe v. Catsmore, 15 Jur. 728. Same Case, 
 5 Eng. Law & Eq. E. 349.) There are exceptions to the general 
 rule as to the method of proving a deed, which are fully explained 
 in the learned treatises on evidence, easily accessible to the student. 
 
 It is incumbent on the plaintiff in ejectment to prove the proper 
 conveyances from a party having the title. If the conveyance is from 
 a party in peaceable possession claiming title at the time it was 
 executed, that is sufiicient, for possession '\^ prima facie evidence of 
 title. But if the conveyance is from a person out of possession, as 
 in case of wild lands, the claimant must show a grant of the land 
 from the original source of title, as a patent from the state, and a 
 regular title from such grantee to himself, or he will fatl in his 
 action. The certificates of location and purchase of lands issued 
 under the laws of California, are held to be prima facie evidence 
 of title in the holders, in the courts of that state. It should be 
 stated, however, that the statute makes these certificates prima 
 facie, not conclusive evidence of title, and it therefore leaves them 
 open to be attacked by any proper proof showing their invalidity. 
 
'642 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 But the burden of proof is upon those contesting them. (Richter 
 V. Riley, 22 Cal. R. 639.) 
 
 A grantee, whose grantor had neither title nor possession when 
 lie conveyed, cannot maintain ejectment against the tenant in pos- 
 session. This proposition is too clear to call for the citation of 
 authorities. It has been held that a plaintiflf in ejectment is 
 entitled to recover upon the parol acknowledgment of the tenant, 
 having no title in himself, that the plaintiff is the owner of the 
 premises. It appeared that the plaintiff had a regular deed of the 
 premises in dispute, which he had held for ten years, but he failed 
 to show title in his grantor, except that the defendant.in posses- 
 sion had expressly admitted that the lessee of the plaintiff was the 
 owner of the land ; and on this evidence the plaintiff was permit- 
 ted to recovei'. The court remarked that the admission was not 
 to operate to divest a title previously shown in the party milking 
 it ; .it was not to transfer title ; and hence the plaintiff was allowed 
 to recover upon the admission of the defendant alone, and the 
 parol acknowledgment was held to be valid and effectual. {Jack- 
 eon V. Denison, 4 Wend. R. 658. And vide Jackson v. Cole, 4 Cow. 
 E. 593.) And in ejectment, evidence may be allowed of the con- 
 fession of the defendant, made after the commencement of the 
 action, in relation to his own title. (Morris v. Yanderen, 1 Dall. 
 !^. 64.) But such declarations made before the commencement 
 of the action have been excluded. ( Wallace v. Mi7ier, 6 Ham. 
 R. 366.) The admissions of the defendant in regard to his pos- 
 session are competent. {Jackson v. Dobbin, 3 Johns. R. 223. 
 Jackson v. Scissam, lb. 499. Andrews v. Fleming, 2 Dall. R. 
 93.) And hearsay evidence of the location of the land has been 
 admitted. {Scott v. Ollabaugh, 3 Har. & McHen. R. 511.) But 
 declarations, with regard to the boundaries of the land, of a person 
 who was interested at the time, are not competent evidence in an 
 action. of ejectment, for the party claiming under the person inter- 
 ested. {Jarrett v. West, 1 Har. & Johns. R. 501.) 
 
 Where the claimant is the commonwealth, or the party consti- 
 tuting the original source of title to the land, it is only necessary 
 for the plaintiff to show that the lands have been unoccupied for 
 some period within the statutory limit for bringing an action to 
 'recover possession, and that the defendant was in possession at the, 
 time the action was commenced. 
 
THE EVIDENCE IN EJECTMENT. 543 
 
 CHAPTER XXXI. 
 
 EVIDENCE m THE ACTION OF EJECTMENT WHERE A PEIVITT EXISTS 
 BETWEEN THE PLAINTIFF AND THE DEFENDANT — PK00F8 BY MOET- 
 
 GAGEES PROOFS BY LANDLORDS AGAINST TENANTS — PROOFS IN 
 
 OTHER CASES WHERE A PRIVITY EXISTS BETWEEN THE PARTIES. 
 
 There is a class of cases ia which the defendant is not permitted 
 to controvert the title of the claimants in an action of ejectment 
 on the ground of estoppel. These are cases where a privity exists 
 between the defendant and the plaintiif, or those from whom he 
 derives title. If a privity in estate has subsisted between the 
 parties, proof of title is ordinarily unnecessary on the part of the 
 plaintiflF, for the reason that a party is not permitted to dispute 
 the title of him by whom he has been let into possession. In all 
 these cases, therefore, the proof is directed to the question as to 
 whether such a relation exists between the parties as to operate as 
 an estoppel, and thereby supersede the necessity of introducing 
 any evidence to establish the title of the claimant. These cases 
 are not very numerous, but all those of the class to which the 
 principle applies may be referred to. 
 
 I. The principle of estoppel arises where the action is between 
 mortgagee and mortgagor, their privies or assigns. It has been 
 stated in a previous chapter that, at common law, a mortgagor 
 may bring his action to recover the mortgaged premises imme- 
 diately after the mortgage becomes forfeited, and this rule of the 
 common law is fully recognized in England, and in many of 
 the American states; tha common law governs except in tliose 
 states where it has been modiiied by express statute. {Ante, 
 cli. 9.) Where the lessee of the plaintiff is the mortgagee of the 
 premises, and the mortgagee himself is the defendant, the only 
 evidence of title required of the claimant is the due proof of his 
 mortgage ; and in England, and in many of the states, it is held 
 that the mortgagee need not show that he has given any notice to 
 quit, or even demanded the premises before the commencement of 
 the suit. This has been held certainly in IS'orth Carolina and 
 Yermont. {Fuller v. Wadsworth, 2 Iredell'* E. 263. Williams 
 V. Bemiett, 1 ib. 122. Lyman v. Mower, 6 Vt. E. 345. Wilson v. 
 Hooper, 13 ib. 653. And vide Xeech v. Sail, 1 Doug. E. 21. 
 
544 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Thunder v. Belcher, 3 East's E. 449. Boe v. Giles, 4 Bing. K. 
 421. Patridge v. Beere, 5 Barn. & Adolpln K. 604.) But in 
 some of the United States it lias been held that the mortgagor 
 is entitled to a notice to quit previous to bringing an action of 
 ejectment by the mortgagee. {Jackson v. Longhead, 2 Jolins. E. 
 73. Jackson v. Green, 4 ib. 186.) The question, therefore, in 
 respect to the necessity of the notice to quit before the action is 
 brought by the mortgagee would seem 'to be unsettled ; and there- 
 fore the safer way would be to give the notice and be prepared to 
 prove it on the trial. 
 
 If the action is against a grantee or lessee of the mortgagor, the 
 case is ma,de out for the plaintiff by the production and proof of 
 the mortgage, which the defendant is estopped to deny ; it must 
 appear, however, in case the action is against an under lessee of the 
 mortgagor, that the lessee was let into tlie possession by the mort- 
 gagor subsequently to the mortgage, and without the privity of the 
 mortgagee. If the tenancy was created prior to the mortgage, 
 the position of the mortgagee is the same as that of the mortgagor 
 before the mortgage was made; and in that case the plaintiff 
 must prove that the tenancy has been determined. Where the 
 tenant in possession holds under the mortgagor by lease subse- 
 quent to the mortgage, or where he is a pnrcliaser from the 
 mortgagor, all the authorities agree that the defendant is not 
 entitled to notice to quit, and none need be proved on the trial, 
 because the relationship of landlord and tenant, in those eases, 
 does not exist between the defendant and the mortgagee. {Jach- 
 son v. Chase, 2 Johns. E. 84. JaeTcson v. Fuller, 4 ib. 215. 
 Jackson v. Staakhouse, 1 Cow. E. 123. Ben v. Stockton-, 7 lialst. 
 R. 322.) And where the mortgage has been foreclosed by adver- 
 tisement, the mortgagor in possession is held not to be entitled to 
 a notice to quit from the purchaser under the mortgage foreclosure. 
 In that case there is no privity, nor any thing like the relation of 
 landlord and tenant subsisting between the parties; at all events 
 the notice of sale under the power contained in the mortgage is 
 held to be equivalent to the notice to quit. {Jackson v. Golden, 4 
 Cow.-E. 266. Bennet v. Lamsen, 7 Johns. E. 300.) 
 
 Where the mortgage contains a proviso that the mortgagor may 
 remain in possession until the condition is broken, it will be 
 necessary for the plaintiff to prove a breach. {Hall v. Boe, 5 
 Barn. & Adolph. E. 687.) But it has been held, that, where a 
 
THE EVIDENCE IN EJECTMENT. 645 
 
 plaintiff claims to recover premises under a mortgage as forfeited, 
 it is enough that it appear that' there is a mortgage, and that from 
 its terms the day of payment was past at the commencement of 
 the suit. This is sufficient without proving affirmatively that the 
 debt secured by the mortgage has not been paid. If the debt has 
 been paid, the defendant may prove it, and that is a good defense 
 to the action. {Rogers v. The Eagle Fire Insurance Comjpany of 
 New York, 9 Wend. E. 611. Jackson v. StacMouse, 1 Cow. E. 
 122.) The presumption is, that money promised to be paid is 
 unpaid, until the statute of limitations has fully run upon the 
 demand ; and, hence, where it appears that a payment is due upon 
 a mortgage, proof of the mortgage is all that is required of the 
 plaintiff in the first instance, and then the default and forfeiture 
 will be presumed ; of course circumstances may be shown under 
 which the mortgage may be presumed satisfied; but nothing 
 appearing to the contrary, the presumption is that the money 
 remains unpaid, which must be overcome by proof from the party 
 on whom the payment of the money due upon the mortgage 
 devolved. In no case is it incumbent on the plaintiff J;o prove the 
 defendant's default by non-performance of the condition, but 
 the defendant, if he can, may prove in his defense the condition 
 performed. 
 
 In case the ejectment is against a third person, who holds the 
 mortgaged lands as tenant to the mortgagor, it will be necessary 
 to gite evidence in addition to proof of the mortgage of the 
 tenancy, and either that the same has been determined, or that it 
 was created by the mortgagor subsequently to the execution of the 
 mortgage, although as before averred in such case, no notice to 
 quit is made necessary. 
 
 When the assignee of a mortgagee is the claimant, the proofs will 
 be the same as when the mortgagee is himself the plaintiff, with 
 the additional proof of the derivative title of the assignee from 
 the mortgagee ; that is to say the additional proof that the mort- 
 gage was duly assigned by the mortgagee to the plaintiff, before 
 the commencement of the action. {Den v. Van JVess, 5 Halst. E. 102.) 
 
 If the action be brought by the mortgagee or his assjgnee, 
 against a person holding adversely to the title of the claimant, the 
 plaintiff must establish his title by proof, that is to say, in such 
 case the claimant must prove the title of the mortgagor to the 
 mortgaged premises at the time of the execution of the mortgage. 
 69 
 
546 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 But if it appear that the defendant is in reality defending the 
 action for the benefit of the mortgagor, or of some person claim- 
 ing under such mortgagor, he will be subject to the same rules 
 with regard to the proofs, and be estopped in the same manner from 
 disputing the mortgagee's title, as the mortgagor himself. {Doe v. 
 Clifton, 4 Adolph. & Ell. E. 813.) 
 
 "Where the mortgage was by lease and release, and the release 
 recited that the releasor was legally or equitaUy entitled to the 
 premises conveyed, and he covenanted that he was lawfully or 
 equitaUy seised in his demesne of and in the premises, and other- 
 wise well entitled to the same, and the legal estate was subse- 
 quently conveyed to him ; and he afterward, for a valuable con- 
 sideration, conveyed the same to a third party ; upon ejectment 
 brought by the mortgagee against sucli third party, it was held 
 that, there being in the release no certain or precise averment of 
 any seisin in the releasor, but only a recital or covenant that he 
 was legally or equitaUy entitled, the defendant was not estopped 
 from setting up the legal estate acquired by him after execution 
 of the release. The court also held that the release did not operate 
 as an estoppel by virtue of the words, " granted, bargained, sold, 
 aliened, remised, released," etc., because the release passed nothing 
 but what the releasor had at the time, and he had not the legal 
 title in the premises at the time of the release. It was also held 
 that the case did not fall Within the rule, that a mortgagor cannot 
 dispute the title of his mortgagee, because the party claimeii, as a 
 purchaser for a valuable^ consideration without notice, a legal ' 
 interest which was not in the mortgagor at the time of the mortgage, 
 he having at that time an equitable interest only, to which his title 
 was not disputed. {Right v. Buohiell, 2 Barn. & Adolph. B. 278.) 
 
 In an action of ejectment by a mortgagee against a mortgagor, 
 the latter may set up an eviction under a paramount title in bar 
 of a recovery ; and though the mortgagor has become a purchaser 
 under such hostile title, and remains in possession of the mortgaged 
 premises, the mortgagee is not entitled to recover; that is to say, 
 an action for the land, as escheated, being brought by the people 
 agaii^t the mortgagor in possession, he gave notice of it to the 
 mortgagee, who refused to defend ; the court held that the mort- 
 gagor might confess judgment, and take title under it, and that the 
 mortgagee could not avail himself of the usual rule of estoppel as 
 between mortgagor and mortgagee, to sustain his action against 
 
THE EVIDENCE IN EJECTMENT. 547 
 
 the mortgagor in possession. (Jackson y. Marsh, 5 Wend. R. 44.) 
 But where one having a defective title, mortgaged the laud and 
 coitinued in possession, and afterward a lease was granted to him 
 bj the real owner in pursuance of an award, the court held that 
 the mortgagor could not set up such lease as an answer to an eject- 
 ment brought by the mortgagee. There it was decided that the 
 usual principle of estoppel would apply. {Doe v. Violcers, 4 AdcSlph. 
 & Ell. E. 782.) It may be stated that the possession of the mort- 
 gagor must be presumed in all cases to be in subordination to the 
 title of the mortgagee until the contrary is shown ; so that pnma 
 facie the principle of estoppel always applies in such cases. {Con- 
 ner V. Whitmore, 52 Maine E. 185.) 
 
 It has been held, that a sale of mortgaged premises under execu- 
 tion at laWj for a part of the mortgaged debt, by the direction or 
 with the knowledge and consent of the mortgagor and his recep- 
 tion of the proceeds of the sale from the sheriff, do not discharge 
 the lien of the mortgage, or estop the mortgagee or a subsequent 
 purchaser at the mortgage sale, with notice of the facts, from recov- 
 ering the land in an action at law. {Barker v. Sell, 37 Ala. R. 354.) 
 And it has also been held in Alabama, that the mortgagor's equity 
 of redemption cannot be sold on execution at law, for the whole is 
 a part of the mortgage debt ; and the effect of the decision is, that 
 a sale of the property, under such execution, passes nothing to the 
 purchaser. {Powell v. WilUam,s, 14 Ala. R. 476.) And a similar 
 doctrine has been recognized in other states, where it has been 
 decided that when a creditor, secured by mortgage, brings his 
 action for the debt secured, recovers judgment, and issues execu- 
 tion, which is levied by his direction on the mortgaged premises, 
 and the same are sold under such execution to a purchaser having 
 notice of the mortgage, the latter acquires nothing but the equity 
 of redemption, and the mortgagee may recover the possession by 
 action at law. {Ireland v. Hall, 10 Johns. R. 481. Vide, also, 
 Goring Y. Shreer, 7 Dana's R. 65. Swegest v. Thomas, lb. 221. 
 Brewston v. 'Robinson, 4 B. Mon. R. 142. Camp v. Cox, 1 Dev. 
 & Batt. L. R. 52. Atkins v. Sawyer, 1 Pick. R. 351.) After the 
 law-day of the mortgage the legal estate is absolutely vested in 
 the mortgagee : the mortgagor has nothing left but an equity of 
 redemption. {Paulling v. Barron, 32 Ala. R. 11.) It follows, 
 therefore, that a sale of the mortgaged property, under execution 
 for the mortgage debt, is wholly ineffectual as a conveyance of title 
 
648 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to the purchaser, unless there has been a surrender l)y the mort- 
 gagee of the legal title, with which, after the law-day, he is clothed 
 by the mortgage. It is only by virtue of such surrender that the 
 mortgagee can have a title subject to levy and sale under such an 
 execution. {BarJcer v. Bell, 37 Ala. K. 354.) 
 
 It has been held in Illinois, that where a mortgagee elects to 
 consider his mortgagor in possession after condition broken, as his 
 tenant, he is a tenant at sufferance and not entitled to notice to 
 quit, and that a purchaser from the mortgagor would be in no bet- 
 ter condition than his vendor; he must hold in the same capacity 
 as his vendor held, to whose rights he succeeded. So that in such 
 case, wliere the mortgagee brings his action to recover the lands 
 under his mortgage, whether against the mortgagor or his grantee, 
 all that is necessary to prove on the trial, to enable him to recover, 
 is, his mortgage and the defendant in possession at the time the 
 action was commenced. {Carroll v. Balance, 26 111. E. 9. Jack- 
 son V. Warren, 32 ib. 331.) 
 
 When a second mortgagee, after forfeiture for default in the 
 payment of the money secured, brings his action to recover the 
 possession of the mortgaged premises, he is entitled to recover on 
 proof of his mortgage, and. the defendant in possession ; and the 
 action cannot be defeated by proof of a prior outstanding mort- 
 gage. An outstanding mortgage in a stranger cannot be set up 
 to defeat a plaintiff, or show that lie has no title ; one who h|i3 
 himself no rights, either as mortgagee or assignee, cannot set up 
 a mortgage that may happen to be outstanding in favor of some , 
 third person. And whether the defendant has such an interest in 
 the land as will enable him to redeem, and thus acquire the rights 
 of an assignee of the mortgage, can make no difference. Until he 
 does redeem he is as much a stranger to the raortsrage as if he had 
 no interest in" the land. {Savage v. Dooley, 28 Conn. R. 411. But 
 vide Porter v. Seeley, 13 ib. 564. Burr v. Spencer, 26 ib. 159. 
 Smith V. Vincent, 15 ib. 1.) 
 
 The relationship existing between a mortgagor in possession and 
 the mortgagor is somewhat peculiar. The mortgagor in possession 
 has been called sometimes a tenant at will to the mortgagee, or a 
 tenant at sufferance, or like a tenant at will; but he is never 
 designated as a tenant for any term. Lord Ellenborough called 
 him a tenant at sufferance. {Thunder v. Belcher, 3 East's R. 449.) 
 And Lord Tenterden said : " The mortgagor is not in the situation 
 
TBE EVIDENCE IN EJECTMENT. 549 
 
 of tenant at will, or, at all events, lie is not more than tenant at 
 BufFerance ; but in a peculiar character, and liable to be treated as 
 tenant or as trespasser, at the option of the mortgagee." {Doe v. 
 Maisey, 8 Barn. & Ores. E. 767.) But, whatever the relationship, 
 all the authorities agree, that where the mortgagee is entitled to 
 bring ejectment, or an action at law, to recover the possession of 
 the premises, all that is necessary, ordinarily, is, that he prove his 
 mortgage, that it appear that the day of payment of money secured 
 thereby had elapsed at the time of the commencement of the action, 
 and that the defendant was in possession when the action was com- 
 menced ; except that in some of the states it is held, that the mort- 
 gagor is entitled to notice to quit before he can be ejected. In 
 those cases, the claimant must also prove the service of the notice 
 to quit. 
 
 II. Another example of the principle of estoppel in the action 
 to recover real property on account of a privity existing between 
 the parties, is found in the case of landlord and tenant. When 
 the relation of landlord and tenant subsists between the parties, 
 the tenancy may be terminated by the efflux of time, or the hap- 
 pening of a particular event contemplated in the lease ; by a notice 
 frohi the landlord to the tenant to deliver up the possession, or 
 vice versa ; and by a breach on the part of the tenant of some 
 condition of his tenancy. This has been elaborately considered 
 in jDrevious chapters upon the subject of the action of ejectment as 
 between landlord and tenant. Those chapters may be consulted 
 for information on that branch of the subject. The proof requisite 
 for the claimant in such cases, is all that will be considered here. 
 
 When the tenancy is determined by the efflux of time, if the 
 demise be by deed, or other writing, the lessee of the plaintiff, in 
 the action to recover the possession of the demised premises, has 
 only to prove the counterpart of the lease by one of the subscrib- 
 ing witnesses, or by the certificate of proof or acknowledgment, as 
 the case may be j and it is held that it is not necessary that he 
 should have given notice to the tenant to produce the original 
 lease, to enable him to do so. {Moe v. D^is, 7 East's E. 363.) 
 If there is no counterpart, notice to produce the original lease 
 should be given, and then, but not otherwise, the claimant will be 
 entitled to give secondary evidence of its contents, if the original 
 be not produced, or if the lease has been duly acknowledged and 
 recorded pursuant to a statute, an exemplified copy of the same may 
 
650 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 be given in evidence, with the same effect as though the original 
 was produced. If the demise be by parol the agreement may be 
 proved by any person present at the making of it; but if it should 
 appear on the trial, by the witnesses on the part of the plaintiff, 
 that a written agreement has at any time been drawn up between 
 the lessor, and the party under whom the defendant came into 
 possession, the agreement must be produced by the plaintiff, 
 unless the same has been lost. {Fenn v. Griffith, 6 Bing. R. 533.) 
 The proof of payment of rent by the half year, or by the quarter, 
 i^jprima facie evidence of a tenancy from year to year; although 
 this presumption will not arise in case of lodgings when the tenant 
 quits in the course of the current year. {Doe v. Samuel, 5 Esp. 
 ]Sr. P. C. 173. Shirley v. Newman, 1 ib. 266. Freeman v. Jury, 
 1 Moo. & Mai. E. 19. Wilson v. Abbott, 3 Barn. & Cres. E. 90. 
 Jackson v. Wilsey, 7 Johns. E. 297.) 
 
 It is hardly necessary to affirm, which is the fact, that the land- 
 lord who brings his action against the tenant, is in no case obliged 
 to prove his title to the demised premises, for the landlord's title 
 is admitted by a tenant who takes a lease from him, and on the 
 faith of the lease, occupied the premises. And where rent has 
 been paid to a tenant for life, the same i^ule applies and he will 
 not be permitted to dispute the title of the reversioner. In these 
 cases the plaintiff is not required to make proof of his title. {Doe 
 V. Whitroe, Dow. & Eyl. N. P, C. 1. Rennie v. Itobinson, 1 Bigg. 
 E. 147. Tilghman v. Little, 13 111. E. "239.) No third title can 
 be purchased by an agent or a tenant, and made use of to defeat 
 that of the landlord. If the tenant, after renting the premises, 
 acquires rights adverse to his landlord, he is bound to surrender 
 the property before he can be permitted to assert them. {Drown 
 Y. Kdler, 32 Illinois E. 151. Russell \. Titus, Z Crrant's Cases, 
 295.) 
 
 It is not necessary for the lessor, when the tenant holds under 
 a lease, to prove that he, or those under whom he claims, has 
 received the reserved rent within the last twenty years. {Doe v. 
 Oxenden, 7 Mees. & "Wels. E. 131.) 
 
 "When the tenancy is determined by the happening of a particu- 
 lar event, the lessor must of course also prove, that the event, upon 
 which the tenancy is to determine, has transpired. 
 
 "When the tenancy expires by reason of a notice to quit, the 
 lessor must prove the tenancy of the defendant, the service of the 
 
TBE EVIDENCE IN' EJECTMENT. 551 
 
 notice and its contents, and that the time of the notice had elapsed 
 at the commencement of the action. 
 
 The cases in which a tenancy is determined by a notice to quit, 
 and the manner of serving the notice, have been fully considered 
 in previous chapters ; and where the action is brought against the 
 tenant in such cases, the claimant must prove the service of the 
 notice in the manner there stated, and that the period for the 
 expiration of the notice had transpired at tlie time the action was 
 commenced. The service of the notice, and the authority to 
 serve it, may be proved by the person who delivered it to the 
 tenant, or by any person who was present and saw the notice 
 delivered ; but if there is a subscribing witness to the notice, such 
 subscribing witness must be called, although it should happen that 
 he only witnessed -the signature of the landlord, and did not 
 deliver the notice himself. {Doe v. Durnford, 2 Maule & Selw. 
 R. 62.) The contents of the notice may be proved by a duplicate 
 original, which should be compared with the notice actually 
 served, by the party serving it ; but it seems that if this precau- 
 tion is not taken, tlie contents of the notice may be proved by 
 parol ; and it is not necessary in eitlier case to give the defendant 
 notice to produce the original in his possession. (Jorey v. Orchard, 
 2 Bos. & Pul. E. 41.) 
 
 In a case in which it appeared that it was the usual practice in 
 the attorney's office for the clerks to serve notices to quit on 
 tenants, and to indorse on duplicates of such notices the fact and 
 time of service ; and on the occasion in question the attorney him- 
 self prepared a notice to quit to serve on a tenant, and took it out 
 with him, together with two others prepared at the same time, 
 and afterward returned to the office and indorsed on the duplicate 
 of each notice a memorandum of having delivered it to the tenant, 
 and the attorney died before the trial, and at the trial two of the 
 notices were proved to have been delivered by him to the tenants 
 on the day when he so took the notices out with him ; the English 
 court of king's bench held that the indorsement made by him on 
 the third notice was admissible in evidence to prove its service. 
 {Doe V. Turford, 3 Barn. & Adolph. E. 890.) 
 
 "Where the notice is given by an agent, it must be proved by the 
 claimant on the trial' of an ejectment against the tenant, that he 
 was duly authorized by the landlord to give the notice at the time it 
 was given, and when two or more joint-tenants or tenants in common 
 
552 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 are lessors of the plaintiflF in ejectment, and a notice to quit is given 
 by one or naore in the name of all, although they all afterward join 
 in the ejectment, it will not be-presumed, from that circumstance, 
 that an authority was originally given by the parties not joining 
 in the notice to their co-tenants. The tenant is to act upon the 
 notice at the time it is served, and he must be satisfied that it is 
 such a notice as will bind all the tenants, and that the notice 
 served was such a notice must be proved on the trial. {Right v. 
 Cuthell, 5 East's E. 491. Doe v. Goldwin, 2 Queen's Bench E. 
 142. JDoe V. Walters, 10 Barn. & Cres. E. 626.) Some evidence 
 must also be given on the trial, from which tlie jury can presume 
 that the time of the expiration of the notice and of the year of the 
 tenancy are the same, or the plaintiff will be nonsuited. A receipt 
 for rent, in which it is stated to be the year's rent due on a par- 
 ticular day, is held to be prima facie evidence of the commence- 
 ment of the tenancy on that day. {Doe v. Samuel, 5 Esp. E. 173.) 
 And if a notice to quit on a particular day is served personally on 
 the tenant, and, after reading it, he makes no objection to the time 
 mentioned in it, when he has an opportunity of objecting, this has 
 been considered as evidence of an acqiiiescence on his part, and 
 of an admission that the tenancy would expire, as the notice repre- 
 sents. But this would not be even prima facie evidence of such 
 fact, unless the notice was, served personally; and then the tenant 
 may rebut the evidence by proof of the actual commencement of 
 the tenancy. {Doe v. Calvert, 2 Camp. N. P. C. 388. Doe v. 
 Woomhwell, lb. 559. Thomas v. Thomas, lb. 648. Doe v. Foster, 
 13 East's E. 405. Oak.a'pjple v. Copons, 4 Terra E. 361.) Whether 
 the defendant assented to the correctness of the notice or not, is a 
 question for the jury. But if a tenant, upon application of his 
 landlord, states his tenancy to have commenced on a particular 
 day, he will be held bound by such information. {Doe v. LamMey, 
 2 Esp. N. P. C. 635.) But, as before stated, the requisites of the 
 notice, and the manner of service of the same, have been heretofore 
 fully considered ; and it is sufScient to affirm here, that the proof on 
 the trial of an ejectment must establish the same in the form and 
 method required, or the plaintiff will fail. The service of a notice 
 to quft, however, may sometimes be dispensed with ; that is to 
 Bay, the conduct of the tenant may have been such as to forfeit his 
 right to a notice to quit, when otherwise he might have been enti- 
 tled to such notice. In such case, instead of proof of service of the 
 
THE EVIDENCE IN EJECTMENT. 553 
 
 notice, the claimant may prove the particular act of the tenant, 
 which will dispense with the notice. For example, when a tenant 
 holding over claims the premises adversely to his landlord, lie is 
 not entitled to notice to quit before the action is brought ; but the 
 landlord, if he neglects to serve the notice, must prove tlie adverse 
 claim of tlie tenant. {Vide Brown v. Jfeller, 32 111. H. 151.) So, 
 if a tenant renounce the tenancy in favor of an adverse title, 
 the landlord may elect to consider himself ousted and maintain 
 ejectment, when he must make his proof accordingly. ( Van 
 WinMe v. HincMe, 21 Cal. R. 342.) And a tenancy at will is 
 determined by the death of the lessor, and the lessee thereupon 
 becomes a tenant at suffei-ance, and is not entitled to notice to 
 quit. But when the owner of the fee brings his action in such a 
 case, he must prove the death of the lessee in the place of the 
 notice to quit. (Reed v. Eeed, Jr., 48 Maine E. 388.) Indeed, a 
 notice to quit is never necessary unless the tenancy is admitted on 
 both sides, and the refusal of the tenant to admit the tenancy may 
 be proved in lieu of the notice to quit. 
 
 It has been held, that, under the Massachusetts statute, an action 
 to recover a whole estate is not maintained by proof that the 
 plaintiff and one under whom the defendant holds are tenants in 
 common, and that the plaintiff gave the defendant notice to quit 
 the whole estate. It was so held upon the ground that the defend- 
 ant in such a case had a right to be in possession of his part of the 
 estate. He was , in per my et per tout, and could not be legally 
 required to quit the possession of the share belonging to him. He 
 could not comply with such a notice to quit without giving up his 
 legal right to the enjoyment of the undivided portion of the estate 
 which did not belong to the plaintiff. The notice was therefore 
 one which the plaintiff had no legal right to give, and which the 
 defendant was not bound to regard ; and it was held not even 
 effectual to terminate the right of the defendant to occupy the 
 estate as lessee or tenant of the plaintiff. {King v. Dickerman, 
 11. Gray's E. 480.) 
 
 The action of ejectment is often brought as between landlord 
 and tenant, on a clause of re-entry in a lease, to recover the prem- 
 ises because of an alleged forfeiture by reason of the breach of some 
 covenant. When the action of ejectment is brought by the land- 
 lord on a forfeiture of the term, as the declaration does not ordi- 
 narily supply any information respecting the alleged causes of 
 70 ■ 
 
554 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 forfeiture, the defendant may compel the lessor to give him a par 
 ticular of the breaches of covenants relied on, and then at the trial 
 the plaintiff will be confined to the particular given. [Doe v 
 FMllips, 6 Term R. 597.) 
 
 The most common cause of forfeiture is for non-payment of rent ; 
 and when the landlord brings his action to recover the premises 
 fortius cause, great nicety and strictness are requisite in all the 
 preliminary proceedings. The right of a landlord to reenter for 
 breach of a condition subsequent is not viewed with favor in the 
 law ; and when he claims that a forfeiture has occurred, and his 
 right attached, it devolves upon him to show that he lias done 
 every thing that was required upon his part to perfect such right 
 of re-entry, rather than resort to an action for damages for a 
 breach of such covenants. The tenancy is to be proved in the 
 regular manner ; and for this purpose, the counterpart of the lease 
 is evidence not only against the original tenant, but also against 
 his assignee, who has held under the same lease. {Roe v. Davis, 
 1 East's E. 363.) Or the tenancy may be proved by secondary 
 evidence of the lease, after due notice to the defendant to produce 
 the original ; and the power of re-entry will be shown by the 
 counterpart, or other evidence of the lease. 
 
 "Where the ground of forfeiture is a breach of covenant, after 
 the tenancy is proved, the claimant must give evidence of the non- 
 performance of the covenant. {Doe v. Robson, 2 Car. & Payne's 
 E.. 245.) He who asserts for himself title by forfeiture must prove 
 it by establishing every fact, and showing every circumstance and 
 condition requisite to constitute the forfeiture, without the benefit 
 of any presumptions in his favor. The old books furnish much 
 ancient and curious learning upon the subject of forfeiture of 
 estates by tenants-; but, as that subject Ixas been heretofore treated 
 at considerable length, it is unnecessary to dwell upon it here. 
 Where the remedy for breach of covenant to pay rent, or for non- 
 payment of rent, is attempted to be enforced, there is but one 
 exception to the rule of the conmion law, that there must be an 
 actual demand made of the rent previous to the entry ; and that 
 occurs where the parties have stipulated in the lease that a re-entry 
 may be for a default of payment of rent without a demand of it. 
 If it is so stipulated in the lease, then proof of the demand of the 
 rent will be dispensed with. {Downer's Case, 5 Coke's E. 40, J. 
 Doe V, Masters, 2 Barn. & Cres. E. 489. Goodright v. Cator, 
 
THE EVIDENCE IN EJECTMENT. 555 
 
 Doug. E. 477, 485. Smith v. Doe, 2 Brod. & Bing. R. 502.) But, 
 if the demand is not expressly waived in the lease when the action 
 is brought for the non-payment of the rent I'eserved, it is indispens- 
 able that the claimant prove on the trial, not only the tenancy, but 
 that the rent was demanded at the time, and in the rnanner required 
 by the law for the demand to be made. {Mein v. Rathione, 21 111. 
 li. 454. Van Rensselaer v. Jewell, 2 N. Y. R. 141. Smith v. Whit- 
 heck,- 13 Ohio St. E. 471.) The law is very nice and particular in 
 respect to the demand of rent in order to work a forfeiture of the 
 lease ; and yet some immaterial omissions or discrepancies will be 
 overlooked. For instance, if the amount of rent proved to be due 
 be different from that stated in the particulars, the variance will 
 not be material. {Tenny v. Moody, 3 Bing. R. 3.) 
 
 Where the ejectment is for the breach of any other covenant 
 contained in the lease, other than the non-payment of rent, it may 
 be affirmed that the claimant must show the covenant broken, by 
 the same evidence as in an action of covenant ; and if he has been 
 ordered by the court to give to the tenant the particulars of the 
 breaches upon which he means to rely, he will be precluded from 
 giving in evidence different breaches from those contained in the 
 particulars. A breach of covenant by mismanagement in over- 
 cropping, and by deviating from the usual rotation of crops, has 
 been held to be Admissible in evidence under particulai-s of 
 breaches, "by selling hay and straw off the land, removing 
 manure, and non-cultivation." (Doe v. Broad, 2 Man. & Gran. 
 R. 523.) 
 
 It has been decided by the English court of king's bench, that, 
 in an ejectment on a proviso of re-entry for not insuring the 
 premises according to the covenants of the lease, it devolves upon 
 the claimant to prove that no insurance has been effected, and 
 that the circumstance that the defendant refused to show tlie 
 policy when the plaintiff required him, and the non-production 
 of it at the trial after notice, are T^oi prima facie evidence against 
 him. {Doe v. Whitehead, 3 Neville & Perry's R. 557.) But, from 
 the great number of insurance offices in the country, the difficulties 
 attendant on the proof that no insurance has been effected would 
 seem to be almost insuperable. The correctness of the ruling in 
 the case of Doe v. Whitehead may therefore be doubted. The fact 
 that the defendant had effected the insurance according to his 
 agreement would seem to be an affirmative fact, and the general 
 
556 LAW OF EJECTilENT AND ADVERSE ENJOYMENT. 
 
 rule is, that the point in issue must be proved by the party who 
 asserts the affirmative, and that a party shall not be required to 
 prove a negative. It is true that this rule does not apply in a case 
 where a party cliarges anothe^ with a culpable omission or breach 
 of duty, for then the party who makes the charge is hound to 
 prove it, though it may involve a negative ; it is one of the first 
 principles of justice, not to presume that a person has acted ille- 
 gally till the contrary is proved. This latter rule, however, only 
 applies where the charge consists in a criminal omission or breach 
 of duty, and it may well be doubted whether the charge, that the 
 defendant has neglected to insui'e premises according to agreement,' 
 is of that nature. And yet the rule has been stated, that, in cases 
 where a party asserts for himself title by forfeiture, he is called 
 npon to prove every /"ac^ which constitutes the forfeiture, without 
 the benefit of any presumption. But, from the fact that the nega- 
 tive does not admit of the direct and simple proof of which the 
 affirmative is capable, after the plaintiff has proved as much as 
 was shown in the case of Doe v. Whitehead, supra, it would be 
 reasonable to call upon the defendant to bring forward his own 
 proof to establish the fact of his performance of the covenants of 
 his lease. 
 
 If the claimant in the ejectment is the assignee of the reversion, 
 after proving the forfeiture, evidence must ISg? given that he was 
 entitled to the reversion at the time the forfeiture was committed, 
 and, if possible, of the mesne assignments from the original lessor. 
 These mesne assignments, however, will be presumed, if the origi- 
 nal lease be for a long time, and the possession of the assignee has 
 continued for a considerable time. [Fenn v. Smart, 12 East's R. 
 444. Earl v. Baxter, Blk. E. 1228.) 
 
 It has been laid down as a general rule, that the tenant is estopped 
 by his lease to dispute the title of his landlord, but the rule is not 
 without its exception. For example, if the landlord's" title has 
 expired since- the commencement of the lease, the defendant will 
 not be estopped by his lease from showing that fact in answer to 
 an ejectment against him by his landlord to recover possession. 
 {England v. Blade, 4 Term E. 682. Doe v. Ramsbottom, 3 Maule 
 & Selw. E. 347.) And it has been held that even the payment of 
 rent to the original landlord, after his title is expired, does not con- 
 clude the tenant, if the payment was made in ignorance of the 
 nature of the landlord's title. {Fenner v. Duplock, 2 Bing. E. 10,) 
 
TSE EVIDENCE IN EJECTMENT. 557 
 
 And where the landlord acquiesces in the payment of rent to a 
 stranger for a considerable time, the tejiant is not precluded from 
 disputing the continuance of his title. {Nea/oe v. Moss, 1 Bing. 
 H. 360.) But the continuance of a tenancy, is presumed unless 
 the contrary appears; so that really, in the first place, the land- 
 lord in these cases is only required to prove the lease from him to 
 the defendant, and then if the tenancy has expired, it will be mat- 
 ter of "defense to be proved by the defendant. 
 . It may be laid down as a general rule, that a person defending 
 as landlord is bound by the same estoppel as the tenant himself, 
 and that a party who gets possession of premises from the lessor 
 of the plaintiff by any fraud or trick upon him cannot set up his 
 own title, or a title in a third person, in answer to the action. 
 {Vide Doe v. Smythe, 4 Maule & Selw. R. 447. Doe v. Mizim, 
 2 Moody & Eobinson's E. 56. Doe v. Litherland, 4 Adolph. & 
 Ell. E. 784. Doe v. Baytup, 3 ib. 188. Doe v. Mills, 2 ib. 17.) 
 And a party also who defends as landlord is estopped from ohject- 
 ing that the occupiers of the premises, who have suffered judgment 
 to go by default, are tenants to the lessor, and have not received 
 notice to quit fromhim. {Doe v. Creed, 5 Bing. E. 327. Francis 
 V. Doe, 4 Mees. & Wels. E. 331. Doe v. 8Mrrov],'1 Adolph. & 
 Ell. E. 157. Doe v. Brichmore, 9 ib. 662. Doe v. Fuller, 1 Tyr. 
 & Granger's E. 17.) But where A demised to B, and afterward, 
 being embarrassed, assigned to 0, and requested B to attorn to C 
 (suppressing the foct of his insolvency), which B accordingly did, 
 and subsequently agreed with C to give up possession at a particu- 
 lar day, A became bankrupt, B remaining in possession, and C 
 brought an ejectment on the agreement. The assignees defended 
 as . landlords ; the English court of king's bench held that these 
 acknowledgments did not estop B, or the assignees representing 
 him, from contesting C's title, for the reason that such acknowledg- 
 ments were made in consequence of A's representations, in which 
 he suppressed the facts rendering the assignment invalid. {Doe v. 
 Brown, 7 Adolph. & Ell. E. 447.) 
 
 III. But there are some other cases in which the principle of 
 estoppel applies, besides' those arising between mortgagors and 
 mortgagees, and between landlords and tenants. It will not bo 
 practicable to consider the evidence requisite for the claimant in 
 the action of ejectment, in all the various cases arising under this 
 division of the subject. Each case must depend on its own 
 
553 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 peculiar circumstances, although it may be averred in general 
 terras, that when the defendant is let into possession of prenaises 
 hy tlie owner, under circumstances by which the relationship of 
 landlord and tenant has not been constituted, and the claimant ' 
 brings his ejectment relying upon the principle of estoppel to 
 relieve him from proving his title, he must give evidence of the 
 circumstances under which possession" was taken, and that the 
 defendant's right to the possession had ceased when the action was 
 commenced. A few cases of this character may be referred to. 
 
 "Where a person enters into possession of the land of another, 
 with his assent, under a contract to purchase the same, the vendor 
 may maintain ejectment against him, after default in either of the 
 payments stipulated Jn the contract ; and upon the trial of such 
 action the claimant is only required to prove the contract of pur- 
 chase, and that the defendant was in possession at tlie time the . 
 action was commenced. It has sometimes been argued that in 
 such a case the claimant should be required to prove also a notice 
 to quit; but this is not the law. The action maybe brought 
 without the previous service of a notice to quit, unless there is a 
 statute of the state providing for it. {Powers v. Ingraham, 3 
 Barb. E. 576. Hotaling v. Hotaling, 47 ib. 163. BooUUle v. 
 Eddy, 7 ib. 74. Candee v. Haywood, 34 ib. 352.) The vendee of 
 lands on a contract of purchase, is sometimes called quasi tenant 
 at will ; but ejectment may be maintained against such vendee 
 upon his failure to perform his part of the contract, under which 
 he enters without a regular notice to quit, although it would be 
 well for the claimant to be able to show in such a case that he had 
 given the vendee notice that the contract was at an end. {Jackson 
 V. Moncrief, 5 Wend. E. 26. Wright v. Moore, 21 ib. 230.) 
 
 It was decided by the old supreme court of the state of 
 New York, that when one enters on land under a contract to 
 purchase, but neglects to pay the consideration money, he and 
 +hose claiming under him are estopped to question the title of the 
 •"endor, or his heirs ; though more than twenty years have elapsed 
 from the time when the last payment became due; though the 
 vendee and those claiming "under him haVe made permanent and 
 valuable improvements, defended several actions of ejectment, and 
 not been called on by the vendor to pay ; and have even acquired 
 title by conveyance from a third person. {Jackson v. Hotchkiss, 
 Cow. E. 401, and vide Brady v. Begun, 36 Barb. E. 533. Jack- 
 
TJIE EVIDENCE IN EJECTMENT. 559 
 
 son V. Walker, 7 ib. 037.) And it has been held by the couit of 
 queen's bench of England, where the defendant, being in possession 
 of premises, entered into an agreement for the purchase of them ; 
 and the purchase not being completed, the vendor brought eject- 
 ment, that the assent was an acknowledgment by the defendant 
 that the title was in the vendor; and, therefore, at the trial, that 
 it was not necessary for the lessor of the plaintiif to give other 
 evidence. {Doe v. Burton, 15 Jur. 990. Same Case, 6 Eng. Law 
 «fe Eq. R. 325.) 
 
 Although strictly speaking, the relation of landlord and tenant 
 is not created between vendor and vendee ; yet the vendee, in 
 ejectment by the owner against him, is absolutely estopped, from 
 either showing title in himself, or setting np an outstanding title 
 in another ; and the same rule applies to one coming into posses- 
 sion Tinder the vendee, either with his consent, or as an intruder. 
 {Jackson v. Walksr, T Cow. E. 637.) And in no case as between 
 vender and vendee, is the vendor required to give a notice to quit, 
 unless the statutes of the state provide for it. {Doolittle v. Eddy, 
 7 Barb. E. 75. Stem v. Sprague, 20 ib. 509.) 
 
 In case a party is let into possession of lands pending a negotia- 
 tion for a purchase, the claimant bringing ejectment must prove 
 that the defendant was so let into possession by him, and that the 
 negotiation has been broken off. If the defendant .took possession 
 under a void lease or agreement, and the action is brought to 
 regain the possession, the claimant must produce and prove tho 
 instrument under which the defendant went into possession. If 
 the defendant went into possession under a license, the claimant 
 mus't show the leave and license, and that the same has been 
 revoked ; and it must always appear that the right of possession 
 in the defendant was terminated before the day of the demise in 
 the declaration ; and this genei-al rule must in all cases be borne in 
 mind by the claimant in ejectment, whatever may be the relation 
 existhig between the parties. But when a privity exists between 
 the plaintiff and the defendant, the plaintiff is not required to 
 make proof of his title, except by the fact that such relation exists. 
 
660 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 CHAPTER XXXII. 
 
 EVIDENCE IN THE ACTION OF EJECTMENT ON THE PAET OF THE 
 DEFEND AlfT — CHAEACTEE OF THE EVIDENCE ADMISSIBLE ON THE 
 PAET OF BOTH PLAINTIFF AND DEFENDANT. 
 
 It now only remains to consider very briefly the evidence which 
 is pertinent and requisite for the defendant in the action of eject- 
 ment, and the kind and character of the proofs which are admis- 
 sible in the action, on the part both of the plaintiff and the 
 defendant. 
 
 From the well settled principle that a claimant in ejectment 
 must recover on the strength of his own title, comparatively little 
 can be said respecting the evidence necessary on the part of the 
 defendant. The lessee of the plaintiff is always required in the 
 first instance to make out a clear and substantial title to the premi- 
 ses in question. The rule in the cases considered in the last chap- 
 ter does not militate against this principle. In these cases the 
 proof of the relation existing between the partiesf-establishes the 
 title of the claimant, so that the title of the claimant must in 
 some way be clearly established ; and, therefore, the defendant's 
 evidence is altogether confined to falsifying his adversary's proofs, 
 or rebutting the presumptions which may arise out of such proofs. 
 He need not show that he has himself any claim whatever to the 
 premises, nor give evidence of a title in a third person, if he can 
 make it appear to the jury that a legal title does not subsist in the 
 plaintiff. . 
 
 . To defeat the' plaintiff, where the lessor claims as heir, for 
 example, the defendant may show on the trial of the action, after 
 the plaintiff has made out & prima facie case, and rested, that the 
 ancestor had devised the lands in question to a stranger ; that by 
 a particular custom, another, and not the claimant, is the heir ; 
 that the claimant is a bastard ; or any other circumstance which 
 will invalidate the claimant's title. 
 
 The question of legitimacy, or illegitimacy, frequently arises on 
 the part of the defendant, as a defense to the ejectment, where 
 the action is brought by one claiming as heir at law. If the 
 lessor of the plaintiff claim by heirship immediately as the son of 
 the person last seised, the defendant may show that he is not the 
 
THE EVIDENCE IN EJECTMENT. '561 
 
 legitimate son ; or if he claims as heir, though other persons 
 interposed between himself and the person last seised, the defend- 
 ant in that ease may sliow either that the lessor liimself, or that 
 some one of those through whom he claims by descent, is not 
 legitimate. The illegitimacy of any one in the line of ancestors 
 will make a complete chasm or breach in the pedigree ; an illegiti- 
 mate person not having an ancestor from whom any blood can be 
 derived. 
 
 The illegitimacy of a person may arise, either from being born 
 out of lawful wedlock, or, if born in wedlock, from not being tlie 
 true child of the married parties. Who is a bastard, and by what 
 proof the fact of bastardy is established, are elaborately considered 
 in the author's work on Infancy, and the leading authorities upon 
 the subject are there cited ; but it is not consistent with the limits 
 and object of this treatise to insert the statement in this place. 
 ( Vide Tyler on Infancy and Coverture, 232-235.) Suffice it to 
 say here, that it is the settled doctrine of the common law, that, 
 on an issue as to the legitimacy of a child, it is not necessary 
 to prove the actual marriage of the parents ; but the marriage 
 may be proved by evidence of cohabitation, reputation, and the 
 acknowledgment of the parties. The reason for this rule is, that 
 the law favors the presumjition of morality in the intercourse 
 between the parties, and consequently also favors the presumption 
 of the legitimacy of the offspring — prcesumiter pro legitimatione. 
 {Clayton v. Wardell, 5 Barb. R. 214. And vide Tyler on Inf. and 
 Cov. 865, 866.) The mother of the child whose legitimacy is ques- 
 tioned is not allowed to prove the non-access of her liusband during 
 his life-time or after his death ; and of course the declarations of a 
 deceased mother are not admissible as to the fact of non-access, 
 which she would not be allowed to prove in person. {Rex v. Lvffe, 
 8 East's R. 193. liex v. Kea, 11 ib. 132.) The doctrine, however, 
 is clearly settled, that although the birth of a child during wedlock 
 raises a presumption that such child is legitimate, yet this presump- 
 tion may be rebutted both by direct and presumptive evidence ; 
 and, in arriving at a conclusion upon the subject, the jury may 
 not only take into tlieir consideration proofs tending to show the 
 physical impossibility of the child born in wedlock being legiti- 
 mate, but they may decide the question of paternity by attending 
 to the relative situation of the parties, their habits of life, the 
 evidence of conduct, and of declarations connected with conduct, 
 71 
 
562 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 aDd to every induction vvliicli reason suggests for determining upon 
 the probabilities of the case. When the husband and -wife have 
 had the opportunity of sexual intercourse a very strong presump- 
 tion arises that it must have taken place, and that the child in 
 question is the fruit; and sometimes this presumption is made 
 conclusive by statute. If not made conclusive by the statutes of 
 the state, the presumption may be rebutted by evidence, and it is 
 the duty of the jury to weigh the evidence against the presump- 
 tion, and to decide as, in the exercise of their judgment, either 
 may appear to predominate. {Vide Case of Banbury Peerage, 2 
 Selwyn's N". P. R. 731-736. Gardiner Peerage Case, Ilargr. Co. 
 Litt. 123, 5. Pendrcl v. Pendrel, 2 Strango's li. 924. Goodright 
 V. Saul, 4 Term E. 356.) 
 
 In case the claimant by heirship was- born out of lawful wed- 
 lock, then there is no difficulty in determining that he is illegiti 
 mate ; although in some of the states, as in Vermont, Pennsylvania 
 and Indiana, it is provided by statute, that when the father and 
 mother of an illegitimate child oi- children shall intermarry after 
 the birth of such child or children, and acknowledge and recognize 
 such child or children as their own, such child or children shall be 
 deemed to be legitimate. ( Vide Tyler on Inf. and Gov. 233, 234.) 
 
 If the lessor of the plaintiff claims as heir, the defendant may 
 shoi^ a devise by the ancestor to a stranger ; but the presumption 
 in such a ease is always in favor of the heir, and if the defendant 
 means to bar the title of the heir at law, he must show affirma- 
 tively a devise of the premises in question. {Brandt v. Liver- 
 more, 10 Johns. R. 358.) 
 
 "When the lessor of the plaintiif in ejectment claims as devisee, 
 the defendant may show that the will was obtaifted by fraud ; that 
 it was not duly executed ; that the testator was a lunatic and the 
 like; except in the states where the probate of the will is conclu- 
 sive, which has been fully explained in previous chapters. ( Vide 
 ante, chapters 28, 29.) And generally, it may be affirmed, that the 
 defendant's evidence in the action of ejectment depends upon the 
 nature of the proofs advanced by the plaintiff's lessor, and need in 
 no case be extended beyond the rebuttal of them ; that is to say, 
 in all cases where the defendant in ejectment did not enter into 
 possession of the premises in suit under the plaintiff, he may show 
 title out of the plaintiff, without connecting himself with it, and 
 thus defeat the action. {Bloom v. BurdioJc, 1 Hill's R. 130.) 
 
THE EVIDENCE IN EJECTMENT. 563 
 
 In ejectment on a mortgage, it is competent for the defendant 
 to show that the mortgage was obtained from him fraudulently, 
 by taking advantage of his derangement of mind, and in order to 
 suppress a prosecution against his son for forgery. {Den v. Moore, 
 2 South. ~R. 470.) And indeed the defendant in ejectment may be 
 permitted to give' evidence of fraud in the plaintiff, or one under 
 whom he claims, in obtaining the title derived from the defendant 
 in any case. {Torrey v. JBeardslei/, i Wash. ' C. C. R. 2'42.) So 
 also, though the rule is fully established that, as between landlord 
 and tenant, the tenant cannot deny that the person by whom he 
 was let into possession had title at the time he took possession, 
 he may show in his defense that such title is determined, and with 
 respect to the title of a person to whom the tenant has paid rent, 
 but by whom he was not put into possession, he is not concluded 
 by such payment of rent, if he can show that it was paid under a 
 mistake. {Doe v. Barton, 11 Adolph. & Ell. R. 307. Same Case, 
 39 Eng. C. L. R. 97.) 
 
 A defendant in ejectment cannot give in evidence a judgment 
 against a third person, on which the land was sold, and the defend- 
 ant purchased, unless some color of title to the land be first shown 
 in the judgment debtor. {Kennedy v. Bogert, 7 Serg. & Rawle's 
 R. 97.) But it has been held by the courts of Pennsylvania, that 
 a verdict against a defendant in a former suit, upon the same title, 
 for the same land, and between parties under whom the then 
 plaintiff and defendant claimed, may be given in evidence, though 
 no judgment was entered, if the defendant acquiesced by paying 
 costs and delivering possession. {Shaefer v. Kreitzer, 6 Binn. R. 
 430.) It has been held in Kentucky, however, that a verdict and 
 judgment in ejectment are not proper evidence in a second eject- 
 ment. {Rice V. Lowan, 2 Bibb's R. 149.) But ordinaiily the 
 judgment in ejectment, like all others, is conclusive as to the sub- 
 ject matter, and between the original parties thereto, and their 
 privies. It is conclusive on the title, only from the day of the 
 demise laid in the declaration ; but it is not evidence of title before 
 that time. (2 Phil. Ev. 316.) When the action of ejectment is 
 brought by a landlord on the clause of re-entry contained in the 
 lease, because of an alleged forfeiture, the defendant may show as 
 a defense any matter which will save himself from the forfeiture ; 
 as, that he offered the rent to the lessor some time before the last 
 day of payment, though he did^ not offer it on the most notorious 
 
564 LAW OF EJECTMENT AND AVVERSE ENJOYMENT. 
 
 part of the premises, nor until tlie last instant ; or that the right 
 of entrj and forfeiture have been waived by the landlord in any 
 of the ways held by the courts to be a waiver of the same, and 
 which have been hereinbefore pointed out. {Ante, ch. 12.) 
 
 The defendant in an action of ejectment, who is a mere posses- 
 sor, without claim of title, may give evidence tending to raise a 
 presumption that the title under which the plaintiif claims is 
 extinct ; for example, he is entitled to have facts and circumstances 
 submitted to the jury, from which a presumption may arise of a 
 conveyance of the estate claimed by the lessees of the plaintiff; so 
 that if,' in the judgment of the jury, such facts and circumstances 
 are sufficient to warrant the inference of a conveyance, they may 
 say so ; and by thus showing the title out of the lessors of the 
 plaintiff, the defendant may protect his possession, although he 
 may be unable to trace such title to himself. A defendant in an 
 action of ejectment is entitled to avail himself of an outstanding 
 title against the lessors of the plaintiff, although he is in possession 
 without color or claim of title ; his possession is good against all the 
 world except the legal owner, and by showing the title in anotlier, 
 he destroys the plaintiff's right to recover. To be sure, a defendant 
 cannot controvert a plaintiff's title by showing a title in some third 
 person, where he entered by the permission of the plaintiff or as an 
 intruder upon the possession of the plaintiff without such permis- 
 sion, and without claim of title, or where the plaintiff claims under 
 a judgment and execution against the defendant. In these cases 
 he is estopped from setting up an outstanding title. ^Where a 
 person intrudes without claim of right, upon the actual possession 
 of another, there is reason in compelling him to restore the 
 possession before he be permitted to. sliow title in a third person. 
 But the reason does not apply in a case of that constructive 
 possession which the law implies as following title ; and a defend- 
 ant entering, declaring that he takes the land as a new possession, 
 acknowledging his ignorance of tlie owner, and expressing a desire 
 to discover him, for the purpose of purchasing, is not precluded 
 from showing the title of the lessors of the plaintiff, notwithstand- 
 ing he may be unable to trace it to himself. {Schauler v. Jackson 
 2 "Wend. E. 13.) ' 
 
 At the common law, the action of ejectment is a strictly legal 
 action, and involves the legal title to the land in dispute ; but in 
 several of the American states an equitable defense may be inter- 
 
THE EVIDENCE IN EJECTMENT. 565 
 
 posed to the action, and when such a policy prevails of course it 
 is competent for the defendant to give in evidence on the trial of 
 the action any matter whether legal or equitable, which will go to 
 defeat the right of the plaintiif or sustain himself in the possession 
 of the premises claimed. For example, in the state of New York, 
 under the present code, an equitable defense may be interposed to 
 an action of ejectment, as well as to any other action at law ; and 
 it has been held by the court of appeals of that state, that a deed 
 of conveyance, absolute upon its fece, if intended for the security 
 of a debt, is in equity a mortgage ; and a mortgagor in that state 
 cannot maintain ejectment for the possession of the premises ; where 
 the person holding such a deed from the defendant brings his 
 action to recover the possession of the premises conveyed, it is 
 competent for the defendant to prove in his defense, that, although 
 the plaintiff's title is absolute upon the face of the conveyance, 
 such plaintiff holds as mortgagee only, |ind thus defeat the action. 
 {Murray v. Walker, 31 IST. Y. E. 399.) The supreme court of the 
 state has decided that the action of ejectment is purely a legal 
 action, and is brought to assert and establish a legal title to land, 
 and the right of possession essential to sustain the action must be 
 such as follows the legal title. And it has been accordingly held, 
 that an entry under a contract to purchase is an entry by lease and 
 license, which, while it remains unrevoked, protects such possession, 
 as against an action of ejectment ; that is to saj', a vendor cannot 
 eject his /own vendee who has entered by license, or undei* an 
 express agreement giving him such possession, until such license is 
 rescinded, or such agreement broken on the part of the vendee. 
 But, if the vendee is in default in making any of the payments or 
 in performing any of the conditions or covenants specitidu in the 
 contract of sale, ejectment may be brought by the vendor, without 
 any notice to quit, or demand of possession ; and that, in such 
 ejectment by vendor against vendee, the latter can only defend 
 his possession by showing a performance on his part, or that he is 
 not in default. It is no defense to such an action that there is a 
 mortgage, which is a lien upon the premises, beyond the incum- 
 brances specified in the contract and assumed by the vendee, where 
 there is a balance or purchase money still due, over and above the 
 amount of all the incumbrances. If the vendee is not content to 
 take the title of the land, the court holds that he should specify his 
 objections and give up j^ossession ; or, if he is unwilling to give 
 
566 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 up the possession, and proposes, notwithstanding the mortgage, to 
 affirm the contract and -insist on its execution, he should, at the 
 time a deed is tendered and the money demanded, tender all 
 the purchase money except a sum sufficient to discharge the 
 incumbrances, and specify his objections to the deed, if he has 
 any otiier. {Pierce v. Tuttle, 53 Barb. R. 155. But vide Cythe v. La 
 Fontain, 51 ib. 186.) But it is held in the state of New York, 
 that, after the plaintiff in an action of ejectment has made out a 
 jprimd facie case to entitle him to recover, if the defendant can 
 show an equitable right to the possession in a third person, under 
 whom he claims, this evidence \Vill be legitimate and proper, and 
 will constitute a complete equitable defense to the action. {Saf- 
 ford V. Ilynds, 39 Barb. E.. 625. And vide Trajphagen v. Trap- 
 hagen,4:0 ib. 537.) 
 
 In respect to the character and kind of evidence which is admis- 
 sible in the action of ejectment, it may be remarked that many of 
 the principles which apply in other actions apply equally in this, 
 although in some particulars the action of ejectment is peculiar. 
 One question of evidence which arises very often in the action of 
 ejectment is as to the effect of recitals in deeds, leases, and other 
 written instruments relating to lands. To what extent, and 
 between what parties the recitals in these documents are evidence, 
 is a matter not laid down with the utmost accuracy or precision in 
 some of the elementary treatises on the subject of evidence ; and 
 yet the authorities upon the subject have become so numerous, 
 that there need be little or no question in most cases in respect 
 to it. 
 
 It is laid down generally, that a recital of one deed in another 
 binds the parties and those who claim under them ; that is to say, 
 it binds parties and privies ; privies in blood,' privies in estate, and 
 privies in law. But it does not bind mere strangers to the deed 
 in which the recital is contained, or those who claim by title para- 
 mount to the deed. It does not bind persons claiming by an 
 adverse title, or persons claiming from the parties by title anterior 
 to the date of the reciting deed. That is to say, this is the o-en- 
 eral rule, although there are cases in which such a recital may be 
 used as evidence even against strangers. For example, if there be 
 a recital of a lease in a deed of release, and in a suit against a 
 stranger the title under the release comes in question then the 
 recital of the lease in sueh release is not per se evidence of the 
 
THE EVIDENCE IN EJECTMENT. 567 
 
 existence of the lease. But, if the existence and loss of the lease 
 be established by other evidence, then the recital is admissible as 
 secondary evidence in the absence of more perfect proof, to estab- 
 lish the contents of the lease; and if the transaction be an ancient 
 one, and tlie possession has been long held nnder such release, and 
 is not otherwise to be accounted for, then the recital will of itself 
 under such circumstances materially fortify the presumption, from 
 lapse of time and length of possession, of the original existence of 
 the lease. Leases, like other deeds and grants, may be presumed 
 from long possession, which cannot otherwise be explained ; and, 
 under such circumstances, a recital of the fact of such a lease in 
 an old deed is far stronger i^resumptive proof in favor of -such pos- 
 session under title, than the naked presumption arising from a 
 mere unexplained possession. This seems to be the general result 
 of the doctrine to be found in the best elementary writers on the 
 subject of evidence, and the same is tolerably well settled by the 
 authorities of both the English and American courts. ( Vide 
 Marchioness of Anandale v. Harris, 2 Pierre Williams' R. 432. 
 Shelley V. Wright, Willes' E. 9. Ford v. Orazj, 1 Salkeld's E. 
 285. Fairtitle v. Gilbert, 2 Term E. 171. Mayor of Carlisle v. 
 Blamire, 8 East's E. 487. Terrett v. Taylor, 9 Cranch's E. 43. 
 Bean v. Parher, 17 Mass. E. 591. Inhabitants of Braintree v. 
 Inhabitants of Hingham, Yh. 432. Willcinson v. Scott, lb. 244. 
 Penrose v. Orijfth, 4 Binn. E. 231. Garwood v. Dennis, lb. 314. 
 Kite's Heirs v. Shrader, 3 Litt. E. 447. Gilbert's Ev. 100, 101.) 
 But it has been held, that the recital in a grant of the date of the 
 certificate of survey upon which the grant was founded is not 
 sufficient evidence of the time when the survey was made. Thus, 
 where agrant of a tract of land issued after the time of the demise 
 laid in a declaration of ejectment for the same land, and a.fter the 
 suit was brought, reciting the date of the certificate of survey to 
 be prior to the time of bringing tlie suit, it M'as held, that the 
 grant was not sufficicint evidence of title, without producing the 
 certificate itself {Henderson v. Parker, 3 Har. & Johns. E. 117.) 
 In respect to estoppels, it is said by Chief Justice Marshall, in a 
 case before the supreme court of the United States, that the prin- 
 ciple originates in the relation between lessor and lessee, and, so 
 far as respects them, is well established, and ought to bo main- 
 tained. The. title of the lessee is, in fact, the title of the lessor. 
 He comes in by virtue of it, and rests upon it to maintain and 
 
668 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 justify his possession. He professes to have no independent right 
 in himself, and it is a part of the very essence of the contract 
 under which he claims, that the paramount ownership of the lessor 
 shall be aetnowledged during the continuance of the lease, and 
 that possession shall be surrendered at its expiration. He cannot 
 be allowed to controvert the title of the lessor without disparaging 
 his own, and he cannot set up the title of another without violating 
 that contract by which he obtained and holds possession, and break 
 ing that faith which he has pledged, and the obligation of which 
 is still continuing and in full operation. The propriety of applying 
 the doctrines between lessor and lessee to a vendor and vendee, the 
 learned chief justice thought, might well be doubted. 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 maintenance of his title, unless he should be called 
 upon in consequence 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 enjoyment of the 
 premises. No 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 examinable. ( Vide 
 BligMs Lessee v. Rochester, 7 Wheat. K. 535.) 
 
 The question of recitals in conveyances as evidence, and of 
 estoppels, often arise in the trial of actions of ejectment, and it 
 is quite convenient to understand when, and the principles on 
 which, they are allowed. 
 
 Presumptions of grants of land" often arise, but never unless the 
 lapse of time be so great as to create a belief that such grants were 
 actually made ; or unless the case made shows that the party claim- 
 ing the presumption was legally or equitably entitled to it. A 
 conveyance will not, in general, be presumed, where the original 
 enjoyment was consistent with the fact of there having been none. 
 (Doe V. Reed, 5 Barn. & Aid. E. 232.) But where the plaintiff 
 produced- an original lease of the premises for a long term, and 
 
TSE EVIDENCE IN EJECTMENT. 669 
 
 proved possession for seventy years, the mesne assignments -wore 
 presumed. {Earl v. Baxter, 2 Black. E. 1228.) And the jury were 
 directed to presume that a grant regularly issued, where a certifi- 
 cate of survey had been returned, and there were sundry convey- 
 ances of the land, and possession by persons claiming thereunder. 
 {Thornton v. Edwards, 1 Har. & McHen. E. 158.) Presumptions 
 of grants are founded upon the general infirmity of human nature, 
 the difiiculty of preserving muniments of title, and the public 
 policy of supporting long and uninterrupted possessions. They 
 may be encountered by contrary presumptions ; and can never 
 fairly arise where all the circumstances are perfectly consistent 
 with the non-existence of a grant. {Jackson v. Manlius, 2 Wond. 
 E. 357.) And in general, the presumption of a grant is limited 
 to periods analagous to those of the statute of limitations, in cases 
 where the statute does not apply. "Where the statute applies, the 
 presumption is not generally resorted to; but if the circumstances 
 of the case are very cogent, and require it, a grant may be pre- 
 sumed within a period short of the statute. {Ricard v. Williams, 
 7 "Wheat. E. 59.) It might as well be stated, perhaps, that peace- 
 . able possession of lands by a parly will foi-m a presumption of 
 title on which a recovery in ejectment may be had against a mere 
 intruder or trespasser, or any one who has entered upon tlie land, 
 except one having the real title. {Downing v. Miller, 33 Barb. E. 
 386. mil y. Draper, 10 ib. 454.) 
 
 Another principle of evidence may be referred to, which is, that, 
 in construing conveyances, effect is to be given to every part of the 
 description, if practicable ; but, if the thing intended to be granted 
 appears clearly and satisfactorily from any part of the description, 
 and other circumstances of description are mentioned which are 
 not applicable to that thing, the grant will not be defeated ; but 
 those circumstances will be rejected as false or mistaken. (Jack- 
 son V. Clark, 7 Johns. E. 217. Jackson v. Loomis, 18 ib. 81.) And 
 what is most material and most certain in a description shall pre- 
 vail over that which is less material and less certain. Thus, course 
 and distance shall yield to natural and ascertained objects ; as a 
 river, a stream, a spring, or a marked tree. Indeed, it seems to be 
 a universal rule, that course and distance yield to natural, visible 
 and ascertained objects. {Newton v. Prior, 7 "Wheat. E. 10. Pres- 
 ton V. Bowman, 6 ib. 582. Jackson v. Gamp, 1 Cow. E. 606. Doe 
 V. Thompson, 5 ib. 371. Jackson v. Moore, 6 ib. 706.) And a false 
 72 
 
570 LAW OF EJECTHIENT ATW ADVERSE ENJOYMENT, 
 
 or mistaken particular in a conveyance may be rejected, -when tliere 
 are definite and certain particulars, suiScieut to locate the grant, 
 ^nt, pri7na facie, & fixed visible monument can never be i*ejected 
 as false or mistaken, in favor of mere course and distance, as the 
 starting point, when there is nothing else in the terms of the grant 
 to control and override the fixed and visible call. The general rule 
 that courses and'distances must yield to natural or artificial monu- 
 ments or objects is upon the legal presumption that all grants and 
 conveyances are made with reference to an actual view of the prem- 
 ises by the parties thereto. {Raynor v. Timer son, 46 Barb. E. 518.) 
 And where the grammatical sense of words is not in harmony with 
 the obvious intention of the parties, tlie courts do not hesitate to 
 substitute one word for another, for the purpose of giving eifect 
 to such intention. (The Long Island Railroad Company v. Conk- 
 lin, 32 Barb. K. 381.) 
 
 Where a deed of lands refers to another deed for the description 
 of the premises, the contents of that other deed cannot be proved 
 by parol, but the deed must be produced, if in existence, and can 
 be found. {Jackson v. Parkhurst, 4 Wend. E.. 369.) And where 
 a lost deed should accompany the ownership as an essential muni- 
 ment of title, no necessity will dispense with the proof by parol 
 of the contents, or substance of the contents, that is to say, of the 
 operative parts of the instrument. Where the contents and loss 
 of a missing deed are established, the parol declarations of the 
 supposed grantee, it seems, are admissible as corroborative evi- 
 dence of the execution and existence of the instrument ; but such 
 evidence of itself cannot operate to confer a title or confirm one 
 otherwise defective. (Metcalf v. Yan Benthuysen, 3 N. Y. R. 424.) 
 The declarations of a person in possession of lands are competent 
 evidence against himself and all persons claiming under him, for 
 the purpose of showing the character of his possession and by what 
 title he claims. {Pitts v. Wilder, 1 N. Y. E. 525. Aheel v. Van 
 Geldor, 36 ib. 513. Sheldon v. Van Slyke, 16 Barb. E. 26. Jack- 
 son V. Bard, 4 Johns. E. 230.) And it has been held, that declara- 
 tions of a former owner of the land in controversy, since deceased, 
 made while he was owner, against his title, are admissible against 
 others claiming under him. {Rogers v. Moore, 10 Conn. E. 13. 
 Norton v. Pettihone, 7 ib. 319.) The declarations of a former 
 holder of the adjoining lands, as to the bounds of the lands in 
 dispute, were admitted in evidence, it not appearing by the plots 
 
THE EVIDENCE IN EJECTMENT. 671 
 
 that he was interested in establishing the facts related by him, 
 {Hall V. outings^ 2 liar. & Johris. K. 112.) But parol evidence 
 that a grantee in a deed of land acknowledged, that, although the 
 deed had been offered to him, he refused to accept the delivery, is 
 not admissble. {Jackson v. Chapin, 5 Cow. E. 485. And vide 
 Enders v.-Sternhey'gh, 52 Barb. E. 222.) And yet declarations 
 disclaiming ownership of the land in dispute are admissible as 
 giving character to possessory acts, but not to affect a title com- 
 petently proved. Thus, in an action of ejectment brought by a 
 party against an incorporated village, it was held to be proper to 
 allow evidence to be given of the declarations of tlie plaintiff to 
 the trustees of the village, shortly before the controversy arose, 
 to the effect that he did not own the land in question. It was 
 declared that his disclaimer of ownership gave character to certain 
 possessory acts which the plaintiff had exercised on the land, and 
 was admissible with that view, though not for the purpose of 
 affecting his paper title. {Hunter v. The Trustees of Sandy Hill, 
 6 Hill's E. 407.) 
 
 Another question of evidence often arises in the action of eject- 
 ment, especially where the matter in dispute relates to a boundary 
 lilje, which it is important to notice ; and that is, the question of a 
 practical location of the premises in controversy between the par- 
 ties. The rule in such cases has been judicially stated, thus : 
 Where there can be no real doubt as to how the premises should 
 be located according to certain and known boundaries described 
 in the deed, to establish a practical location different thereupon, 
 which shall deprive the party claiming under tiie deed of his legal 
 rights, there must be either a location which has been acquiesced 
 in for a sufficient length of time to lar a right of entry under the 
 statute of limitations in relation to real estate, or the erroneous 
 line must have been agreed upon letween the parties claiming tl>e 
 land on both sides thereof, or the party whose right is to be barred 
 must have silently looked on, and seen the other party doing acts, 
 or subjecting himself to expenses in relation to the land on the 
 opposite of the line, which would be an injury to him, and which 
 he would not have done if the line had not been so located ; in 
 which case, it has been said, .perhaps a grant might he presumed 
 within the statutory limit. {Adams v. Rockwell, 16 "Wend. E. 
 285, note.) But to establish a practical location which is to divest 
 a party of a clear and conceded title by deed, the extent of which: 
 
572 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is free from all ambiguity or doubt, the evidence of establishing 
 such location should be clear, positive and unequivocal. 
 
 There can be doubt, in the language of an eminent judge, that 
 a line run with the full knowledge of all the adjoining owners, or 
 under circumstances from which such knowledge may be reason- 
 ably inferred, clearly designated, and generally recognized and 
 acquiesced in by those concernedj by repeated and unequivocal 
 acts for a long period, must control, and cannot be disturbed, 
 whether it passes through cultivated or wild lands. It would be 
 most unreasonable to deny to the owners of uncultivated and wild 
 lands the right to settle their common boundary line ; and if they 
 can do that by positive agreement, such agreentent may be infer- 
 red from their unequivocal acts, and is as operative when thus 
 proved, as if it had been inserted in a deed. In such cases, the 
 establishment of a line is not deemed to be, nor does it acquire 
 validity as a conveyance of a new title, but it simply ascertains 
 and determines the extent of lands held under pre-existing titles. 
 It was accordingly held, that recognition of, and acquiescence in, 
 the settlement line by the trustees of Rochester holding the legal 
 title, and by their cestuis que trust, the inhabitants of the town, 
 for more than twenty-five years, is conclusive, without attributing 
 any effect to the settlement deed, more than if a parol agreement 
 between the parties as to the boundary. It was further decided, 
 that the effect of such acquiescence is not confined to parts of the 
 line where there had been actual occupation, or other distinct act 
 of local claim or recognition, but a line run with such publicity, 
 clearly designated and generally recognized and acquiesced in by 
 those concerned by repeated and unequivocal acts, for so long a 
 period (over seventy years in this case), must control whether it 
 passes through cultivated or wild lands. {Hunt v. Jackson, 19 N. 
 Y. R. 279.) 
 
 It was laid down in the late court of errors of the state of New- 
 York, that to deprive a man of his absolute right to the un- 
 questioned fee of his land, according to the doctrine of the courts 
 regardless of, or according to the construction which they have 
 given to the statute for the prevention of frauds and perjuries, it 
 should appear most clear and distinct, without the shadow of a 
 doubt, and by testimony the most convincing ahd satisfactory, that 
 there was an express agreement made between the owners of the 
 adjoining lands, deliberately settling the exact precise line or 
 
THE EVIDEXCE, IN EJECTMENT. 573 
 
 boundary, or location between them, and an acquiescence therein 
 for a considerable time y or, in the absence of proof of such agree- 
 ment, it should be as clearly, distinctly and satisfactorily shown, 
 that the pai-ty claiming has had possession of the lands claimed, 
 lip to a certain visible known line, with the express knowledge 
 and assent of the owner of the adjoining lands, and his acquies- 
 cence in such possession, adverse to, and in defiance of, his rights, 
 and this for a considerable time. What this considerable time 
 is, has not been limited or defined, is quite vague and uncertain, 
 and must necessarily depend upon the particular circumstances of 
 each case. In all cases in which practical locations have been con- 
 firmed upon evidence of this kind, the acquiescence has continued 
 /or a long period, rarely less than twenty years. In one case the 
 erroneous line had been acquiesced in thirty-six years {JacTcson v. 
 Bowen, 1 Gaines' E. 358) ; in another the time was forty years 
 {JaoJcso7i V. Dysling, 2 Gaines' R. 198) ; in another it was forty 
 years {Jackson v. Vedder, 3 Johns. R. 8); in another it was 
 thirty-eight years [Jackson v. Dieffendorf, 3 Johns. li. 269) ; in 
 another it was forty-one years {Jaclcson v. McCall, 10 Johns. li. 
 377) ; and in Hunt v. Johnson, supra, the time was seventy years. 
 While in one case an acquiescence of four or five years {Kip v 
 Norton, 12 Wend. E. 127), and in another an acquiescence of 
 eleven years {Adams v. Rockwell, 16 Wend. R. 285), were held 
 insufficient. 
 
 In respect to practical location, Ghief Justice Savage, in one case, 
 said, " cases of this description (cases of location and acquiescence) 
 have been frequently before the court. The principle upon which 
 they have all been decided is, that when parties agree upon a division 
 line, either expressly or by long acquiescence, such line shall not be 
 disturbed; buildings and permanent improvements may be made 
 upon the faith of the location of the line ; transfers may be made, 
 and to permit such lines to be altered might be productive of in- 
 calculable injury." {McCormick v. Barnum, 10 Wend. R. 104.) 
 Again, in another case, the same distinguished judge repeated the 
 doctrine : " An assent to a location must be either express or im- 
 plied." If there is a disputed line between two adjoining pro- 
 prietors of land, it may be settled between them by a location 
 made by both, or made by one, and acquiesced in by the other, for 
 so long a time as to be evidence of an agreement to the line. 
 There can be no doubt that an express parol agreement to settle a 
 
574 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 disputed or unsettled line is valid, if executed immediately, and 
 possession accompanies and follows such agreement. So, also, 
 where there has been no express agreement, long acquiescence by 
 one in the line assumed by the other is evidence of an agreement." 
 {Kip V. Norton, 12 Wend. E. 127.) And in an early case in the 
 old supreme court of New York, the court said : " After the parties 
 have deliberately settled a boundary line between them, it would give 
 too much encouragement to the spirit of litigation to look beyond 
 such settlemetit, and break up the line so esiaWis/ieaJ between them. 
 {Jackson v. Corlear, 11 Johns. R. 123.) 
 
 A distinguished judge in the court of appeals of the state of 
 ITew York excepts to the ground that the rule in question is 
 based upon tlie idea of an agreement, either express or implied, 
 as to the location of the line, and argues that it is an error to 
 assume that a parol agreement, either actual or supposed, fixing 
 the boundaries to lands, lies at the foundation of the rule. He 
 says : " It is true that several of the cases make this suggestion, and 
 speak of the long acquiescence of the parties as affording evidence 
 of such an agreement. It is difficult, however, to support the rule 
 upon such a basis. If acquiescence for a great number of years in 
 an erroneous location is obligatory upon the parties merely as evi- 
 dence of a previous parol agreement, then it must follow that any 
 other proof establishing such an agreement would be equally con- 
 clusive upon them. If it is the agreement which binds, the nature 
 of the proof, provided it be competent, is of course immaterial. 
 * * * It seems impossible to hold that a mere parol agreement, 
 adopting a line different from that described in the deed, is obliga- 
 tory, witliout violating the statute of frauds, both in its letter and 
 spirit. * * * The rule seems to have been adopted as a rule 
 of repose, with a view to the quieting of titles ; and rests upon 
 the same reason as our statute prohibiting tiie disturbance of an 
 adverse possession which has continued for twenty years." And 
 the views of the learned judge were adopted as the doctrine of 
 the court; and it was accordingly held, that the acquiescence 
 of adjoining proprietors, for forty years in the practical location 
 of a boundary line between their lands, is conclusive, although it 
 be proved that such location was originally made under an agree- 
 ment resulting from a mutual mistake as to facts. It was, how- 
 ever, conceded in the case, that there may be cases in which an 
 express agreement recognizing an erroneous boundary will conclude 
 
THE EVIDENCE IN EJECTMENT. 575 
 
 a party ; as where the other party, acting upon the faith of such 
 agreement, has made expensive improvements, the benefit of which 
 will be lost to him if the lino is disturbed. But it was claimed, 
 that such cases, if they exist at all, rest upon the principle of 
 estoppel in pais. {Baldwin v. Brown, 16 K". Y. K. 359.) 
 
 All of the authorities cited upon this question of practical loca- 
 tion are from the New York reports, but the rule is of universal 
 application, and is alike applicable in all the states. 
 
 With respect to the competency of witnesses in the action of 
 ejectment, little need be said here, from the fact that the policy is 
 fast extending in the United States of admitting any person to 
 testify as a witness in all actions who is neither directly nor indi- 
 rectly a party to the action ; and in some of the states the parties 
 themselves are admitted as witnesses in their own favor. But in 
 those states where the common law still governs in such cases, no 
 person is permitted to testify in a case who is interested in the 
 event of the action. Where a witness stated that the lessor of the 
 plaintiff had formerly assigned to him the premises in question for 
 a particular purpose, but that he had given up the deed, and did 
 not believe that he had any beneficial interest in the premises, he 
 was considered incompetent. {Doe t. Bragg, 1 Ryan & Moody's 
 K. 87.) So a tenant in possession is an imcompetent witness in 
 support of the title of the defendant under whom he holds. {Doe v. 
 Pye, 1 Esp. N. P. C. 764. Doe v. Williams, Cowp. E. 621.) And 
 where ^ prima facie case has been made out against the defendant 
 as tenant in possession, a witness is incompetent to prove himself 
 the real tenant, and that the defendant was only his bailiff. {Doe 
 V. Wilde, 5 Taunt. E. 183. Doe v. Bingham, 4 Barn. & Aid. E. 
 637.) But a grantor, with covenant of warranty, is a competent 
 M'itness for his grantee, in an action of ejectment brought by him, 
 although he would not be a competent witness to s^ipport his 
 vendee's title in an action against him for the premises by a third 
 person. {Jackson v. Rice, 3 Wend. E. 180.) And a witness was 
 held competent in ejectment who had a judgment against the 
 testator whose title was in dispute, but whc^had left abundant 
 personal property to satisfy the judgment, and whose adminis- 
 trator had given ample bonds. {Youst v. Martin, 3 Serg. & 
 Eawle's E. 423.) So also, in ejectment, a creditor of the debtor 
 from whom the plaintiff took the land by levy on execution, is a 
 competent witness to prove the deed of the defendant fraudulent, 
 
576 LAW OF EJECTMENT AND ADVERSE ENJOJMENT. 
 
 unless he lias attached or levied upon some portion of the land 
 contained in the defendant's deed. {Lillie v. ^¥ilson, 2 Koot's K. 
 517.) But a tenant's wife is not a competent witness for the 
 defendant in ejectment where such tenant is in possession of the 
 premises and a general defense has been entered. {Pipher v. 
 Lodge, 16 Serg. & Rawle's E. 214.) An heir apparent is a com- 
 petent witness in ejectment for the land ; but a remainderman, 
 who has a personal interest, and not a mere expectancy, is incom- 
 petent. {Smith V. Blackham, 1 Salk. E. 283.) And it has been 
 held, that a joint-defendant, who suffered judgment by default, 
 was a good witness to prove the other defendant in possession. 
 {Doe V. Green, 4 Esp. N. P. C. 198.) 
 
 In a word, it may be affirmed, that at common law the testimony 
 of the parties to the action, of persons deficient in understanding, 
 of persons insensible to the obligations of an oath, and of persons 
 whose pecuniary interest is directly involved in the matter in 
 issue, is rejected, as well in the action of ejectment as in all other 
 actions ; but, as before stated, the common law in respect to the 
 competency of witnesses has been greatly modified in many of the 
 states. 
 
 CHAPTEE XXXIII. 
 
 OF THE TRIAL AND SUBSEQUENT PEOCEEDINGS EST THE ACTION OF 
 
 EJECTMENT — THE JUDGMENT IN THE ACTION THE COSTS — THE 
 
 EXECUTION WRIT OF ERROR. 
 
 There are some pebuliarities in respect to the trial of the action 
 of ejectment at common law, which are entitled to notice. The 
 death of the lessor of the plaintiff does not abate the action. This 
 point has frequently been decided, although the death of the lessee 
 in ejectment may be received as an excuse for not proceeding to 
 the trial, according to the practice of the court. {Fine v. Jackson 
 8 Johns. E. 495. Justin ads. Jackson, 1 "Wend. E. 27. Doe v. 
 Butler, 3 ib. 149, 153. Robertson v. Morgan, 2 Bibbs' E. 148. 
 Kinnexj v. Beverly, 1 Hen. & Munf E. 531.) In all these cases 
 the death of the lessors occurred after the commencement of the 
 action ; but if it appears that the lessor of ^the plaintiff was dead 
 when the suit was commenced, it is a ground of nonsuit on the 
 
THE TRIAL IN EJECTMENT. 577 
 
 trialj and as a general rule the demise of a lessor who died before 
 the commencement of the action will be struck out of tlie 
 declaration, on motion of the defendant before trial, without costs 
 to be paid to the plaintiff, on the ground that it is an irregularity 
 in the plaintiff to make a dead man a lessor. Although the 
 demise is a fiction, the fiction must be such as might by possibility 
 have been true, which cannot be the case where the lessor of the 
 plaintiff was dead at the time of the commencement of the action. 
 {Lee V. Grunlee, Munf. E. 303. Doe v. Butler, 3 Wend. E. 149.) 
 But it has been held in the state of Maryland, that an ejectment 
 abates by the death of the lessor of the plaintiff. {Howard v. Gar- 
 diner, 3 Har. & McHenry's E.-98.) And yet it has been held there 
 tliat the death of one of the lessors of the plaintiff does not abate 
 the action, but that the death of such lessor may be suggested after 
 the jury are sworn, and his heir need not appear or be made a 
 party. {Howard v. Moale, 2 Har. & Johns. E. 246.) At the 
 common law, where the lessor of the plaintifi'in ejectment is only 
 a tenant for life, his death will not abate the action, nor can his 
 death be pleaded puis dai'rein continuance, because his right is 
 supposed to be in the plaintiff, his lessee, who may proceed for the 
 damages occasioned by the sui:>posed ouster, although he cannot 
 obtain possession of the land. In such case, of course, the title of 
 tlie plaintiff" terminates with the death of his lessor, and the 
 plaintiff would have no title to turn the defendant out of posses- 
 sion ; but he would, nevertheless, have a title to the mesne profits 
 and the costs of the suit, and should have a judgment to enable 
 him to recover them. ( Vide Thrustout v. Gray, Strange's E. 
 1056. Thrustout v. Bidwell, 2 "Wils. E. 7. Jaclcson v. Daven- 
 port, 18 Johns. E. 295.) And indeed it seems that if the plaintiff 
 in ejectment convey the land in controversy during the pendency 
 of the action, he may, nevertheless, proceed to tlie trial of the 
 suit, and recover his damages and costs. {Murray v. Garretson, 
 4 Serg. & Eawle's E. 130.) But in another case the court held 
 that if a defendant shows that the title to the land in dispute lias 
 passed from the plaintiff during the action, the plaintiff can recover 
 damages only*ip to the time of the passage of the title, and this 
 is doubtless the true rule in such cases. {Ileel v. Deens, 1 Nott & 
 McCord's E. 210.) If the defendant in ejectmait refuse to appear 
 a:nd confess lease, entry and, ouster, the plaintiff must be non- 
 suited, but he will be entitled to his costs ; and when the plaintiff 
 73 
 
578 LAW OF EJECTiTENT AND ADVERSE ENJOYMENT. 
 
 t 
 
 is nonsuited from the defendant's refusal to appear and confessj 
 the cause of the nonsuit should be specially indorsed upon the 
 postea, in order to entitle the plaintiff to have his costs taxed and 
 allowed, upon the consent rule; and also to enable him to have 
 judgment entered against the casual ejector. {Turner v. Barnahy, 
 1 Salk. E. 259. Doe v. Roe, 2 Bing. E. 169. Doe v. Moe, 1 Barn. 
 & Ores. E. 118.) 
 
 If there be several defendants, and some of them refuse to appear 
 and confess, it is the practice to proceed against those who do appear, 
 and enter a verdict for those wlio do not, indorsing upon the postea 
 that such verdict is entered For them, because they do not appear 
 and confess : and the plaintiff's lessor will then be entitled to his 
 costs against such defendants, and to judgment against the casual 
 ejector for the lands in their possession. {Claxvene v. Leach, Lord 
 Eaymond's E. 729. Ilamhleton v. Wells, 4 Call's E. 213. And vide 
 Bratton v. Mitchell, 5 "Watts' E. 69. Jackson v. Travis, 3 Cow. E. 
 356. Carroll v. Norwood, 1 Har. & Johns. E. 167.) 
 
 An action of ejectment is noticed for, and brought to trial, under 
 the same practice as in other cases. The cause may be noticed for 
 trial as soon as the same is at issue as to all the parties, or at issue 
 as to one or more of several defendants, and the default of the 
 remaining defendants to appear anS plead in the action. The 
 issue is joined, as a general thing, on the plea of the general issue ; 
 and where one of two defendants appeared and pleaded to issue, 
 and the other defendant disdained, it was held in Pennsylvania 
 that the cause was not at issue as to both defendants. {Bratton 
 V. Mitchell, supra.) Though there be several defendants in the 
 action of ejectment who have pleaded to issue, the cause must be 
 tried as to all. at the same time ; and where two or more defend- 
 ants in the action make a joint defense, they will not be permitted 
 at the trial to sever thei? defense. {Carroll v. Norwood, 1 Har. 
 & Johns. E. 167. And vide Jackson v. Travis, stipra.) If 
 there be any material variance between the issue and the record, 
 the defendant should, nevertheless, appear at the trial, and after- 
 ward move the court to set aside the verdict for the variance ; 
 because if he do not appear, he is out of court, and cannot after- 
 ward move to set aside the nonsuit for his not appearing ; and the 
 court will sometinjes amend the nisi prius record, after such non- 
 suit or motion of the plaintiff, where it appears that there was some 
 omission by reason of a mistake ; in which case the defendant will 
 
THE VERDICT IN EJECTMENT. 579 
 
 not bs permitted to come in and defend, altliougli he swear to 
 merits, unless he also excuse his default to appear on the trial. 
 {Jackson v. Young, 1 Cow. E. 131. Doe v. Wylder, 2 Barn. & Aid. 
 E. 471. Jones v. TatJiam, 8 Taunt. E. 634. But vide Jones v. 
 Hurgest, Barn. E. 175. Laio v. Wallis, 1 Barnard's E. 175.) And 
 in case the demise should he laid in the declaration on a day not 
 come at the time of the trial, the defendant must, notwithstanding, 
 appear aad confess, as the plaintiff would otherwise be nonsuited^ 
 and entitled, under the consent rule, to judgment against the casual 
 ejector. {Anonymous, Ld. Eaym. E. 798. Small v. Cole, 2 Burr. 
 E. 1159.) Tills rule is, undoubtedly, placed upon the ground that 
 the verdict covers the defect in setting out the title in the decla- 
 ration, although the case in Burrows holds that a verdict in eject- 
 ment will not cover a defective title, but only a title defeoiively set 
 out, and where it appears that a proper title was proved at the trial. 
 In respect to the form of the verdict proper to be rendered in 
 the action of ejectment, it is not necessary that much be said in this 
 connection, for the reason that in most of the states the practice is 
 I'egulated by express enactment, which will be noted when the 
 action to recover real property in the several states is considered. 
 According to the forms given in Eunnington's old treatise on eject- 
 ment, the plaintiff may take a verdict for his term in certain prem- 
 ises, describing them, and the defendant have tlie verdict as to 
 other premises, also describing them, and such is always the prac- 
 tice at common law, and such is almost universally the practice in 
 the several states. In an early case in England, where in an eject- 
 ment the jury found the defendant guilty as to part of the premises 
 in the declaration, and not guilty as to the residue, all the judges 
 were of opinion that the judgment ought to conform to the verdict, 
 for it was consequent upon the verdict; but that an entry of a 
 general or variant judgment was but a misprision of the clerk, and 
 amendable even after error brought. {Mason v. Fox, Cro. Jac. 031.) 
 And in another early case in the English court of king's bench, the 
 plaintiff brought ejectment for a rnoiety of a certain parcel of land, 
 and had a verdict for one-third part of the premises ; and the ques- 
 tion was, whether in such a case the plaintiff could recover for a 
 less undivided part than he sued for. The court held that she 
 could, and that she was entitled to a judgment for the one-third. 
 Lord Mansfield said: "The rule is undoubtedly right, that the 
 plaintiff must recover according to the title. Here she has do- 
 
580 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 manded half; and she appears entided to a third ; and so much 
 she ought to recover; so if you demand forty acres, you may cer- 
 tainly recover twenty : every day's experience proves this. And 
 no possible objection can be made to this; for if more is laid, 
 there is no reason wliy he should not recover less ; though the 
 reverse, indeed, will not hold, viz., that if he demand less he shall, 
 nevertheless, be entitled to recover more." {Denn v. Purvis, 
 1 Burr. E. 326. And vide Abbott v. Skinner, 1 Sid. E. 229.) But 
 it is not needful, to multiply words upon the subject. The analo- 
 gies of the common law, and all the authorities, both English and 
 American, concur in the principle that the verdict in ejectment 
 may be in accordance witli the title proved ; and if the plaintiff 
 shows title to part only of the premises claimed in liis declaration, 
 he is entitled to have a verdict for the part to which he proves 
 title, and no more ; although he can in no case recover more land, 
 in quality or quantity, than he has claimed in his declaration. 
 ( Vide McArthur v. Porter, 6 Peters' E. 205. Tryon v. Carlin, 
 5 "Watts' E. 371. Boward v. ' Moalc, 2 Har. & Johns. E. 249. 
 Fite V. Doe, 1 Elackf E. 127. Bowles v. Sharp, 4 Bibb's E. 550. 
 Scott V. Bealle, 1 A. K. Marsh. E. 69. Van Alstyne v. Spraker, 
 13 Wend. E. 578. Magruder v. Peters, 4 Gill & Johns. E. 323.) 
 But although a plaintiff in ejectment may recover less than he 
 claims, it must be of the same nature. If he declares for an undi- 
 vided part, he may recover for a smaller undivided part ; but he 
 cannot recover an entirety if he declares for an undivided interest, 
 nor an undivided interest if he declares for an entirety. {Carroll 
 V. Norwood, 5 Har. & Johns. E. 155. Harrison v. Stevens, 12 
 "Wend. E. 170.) Such is the general rule in respect to the verdict 
 in the action of ejectment, but as before remarked, the subject is 
 usually regulated by statute, and tliat will be noticed hereafter. 
 
 A general verdict in favor of the plaintiff for the lands claimed 
 in the declaration will be good. But if the verdict be special for 
 only a part of the premises claimed, the part for which the jury 
 find for the plaintiff should be described in this verdict with such 
 precision as that possession may be delivered by the sheriff upon 
 the judgment to be entered on the same. {Clay v. White, 1 Munf. 
 E. 162.) 
 
 Where the action is against two or more defendants, and the 
 defendants are charged in the plaintiffs' declaration with holding 
 possession of the premises in dispute jointly, if it appear on the 
 
THE VERDICT IN EJECTMENT. 581 
 
 trial that the defendants each possess a parcel of tlie land in 
 severalty, and no part jointly, the plaintiffs will be entitled to a 
 verdict for one possession only, at his election, and the defendants 
 disconnected with that possession must have a verdict in their 
 favor. So, also, in sneh case, if it appear on the trial that one or 
 more of the defendants severally possess each a parcel, and the 
 rest of the defendants possess the residue of tlie premises jointly, 
 the plaintiff may take a verdict against the defendants who possess 
 the premises jointly, and the other defendants may have a verdict 
 in their favor. {Jaclcson v. Ilazen, 2 Johns. E. 438. Rogers v. 
 Arthur, 21 Wend. R. 598. Bayard v. Golefax, 4 Wash. C. C. E. 38. 
 Dear v. Snowhill, 1 Green's R. 23. But vide Jackson v. Woods, 
 5 Johns. R. 278. Jackson v. Andrews, 7 Wend. E. 152.) 
 
 It must appear vrith reasonable certainty what the premises are 
 for which the_ verdict is entered. A verdict that the defendant 
 should have a verdict for the " third part of the forty-one acres 
 and thirty-two perches neat, and if any surplus, it goes to the 
 plaintiffs," was lield too uncertain, and could not be sustained. 
 {Smith V. Jenks, 10 Serg. & Rawle's R. 153. And vide Gregory 
 V. Jackson, 6 Munf. R. 25.) But it has been held, that where the 
 issue is joined in ejectment on the title only, a verdict for a tract 
 of land " according to the survey filed in the cause," it being 
 described in the commencement of the declaration as a " messuage 
 with its appurtenances," and in a subsequent clause as " the said 
 tenement with its appurtenances," and in the conclusion as " the 
 said farm with its appurtenances," is sufficient, although quantities 
 and boundaries are not mentioned. {Paul v. Smiley, 4 Munf. R. 
 468.) And a verdict in ejectment, for " the land in the declaration 
 described," has been held to be sufficiently specific, although the 
 declaration does not precisely ascertain the quantity or boundary. 
 {Farrow v. Farrow, 2 J. J. Marsh. R. 388.) 
 
 A special verdict in ejectment has been set aside, because it did 
 not find the time of the death of a certain person, upon which the 
 title of the lessors of the plaintiff depended, which fact, from the 
 circumstances disclosed in the verdict, probably could have been 
 found by the jury ; also for not finding whether the defendant, or 
 those under whom he claimed, had or had not such possession of 
 the land as would be sufficient for his defense in that action, what- 
 ever might be the state of the title. {Cropper v. Carlton, 6 Munf. 
 R. 277.) But probably the general principles applicable to the 
 
582 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 verdict in the action of ejectment are sufficiently disclosed by the 
 points already stated and the authorities cited ; and therefore 
 the subject need not be pursued further in this place. 
 
 The judgment in the action of ejectment is grounded upon the 
 verdict, and it must, therefore, be entered up for the same lands, 
 and only the same lands, of which the defendant is found guilty 
 of -withholding the possession from the plaintiif; that is to say, it 
 should not be entered up for more land or for more parcels than 
 the defendant was found guilty of; though a variance between 
 the verdict and judgment, occasioned by the misprision or default 
 of the clerk in entering the judgment, may be amended by the 
 court, even after a writ of error brought. The courts, indeed, 
 after judgment, make every possible intendment in favor of the 
 claimant ; and if the same can by any probable means be sus- 
 tained, it will be supported. Perhaps the practice sanctioned in 
 such cases will be most readily comprehended from a digest of 
 some of the authorities upon the subject ; and the authorities 
 cited shall be those of a general application, and not such as are 
 controlled by the peculiar policy of any state. 
 
 A trifling variance between the verdict and judgment in eject- 
 ment, in relation to the lands adjudged to the plaintiff, where the 
 judgment does not give him more lands than the verdict, will not 
 be held erroneous. {Camden v. Hashill, 3 Eandolph's E. 462.) 
 
 In the action of ejectment, where the fictions of the common law 
 prevail, the judgment in favor of the plaintiff must be for the 
 nominal plaintiff, instead of the lessor of tlie plaintiff; and a judg- 
 ment for the lessors, instead of the nominal plaintiff", has been held 
 to be erroneous. The distinction is important, perhaps, on account 
 of the particular effect to be given to the judgment in the action 
 of ejectment. {Chaviiers v. Ilandley, 3 J. J. Marsh. K. 98.) 
 
 "Where two demises were laid in the declaration, by different 
 lessors, of the same premises for the same term, both as to com- 
 mencement and duration, and the judgment was that the plaintiff 
 recover his terms in the premises, and it was objected that both 
 lessors could not have a title to demise the whole, and that, there- 
 fore, there was an inconsistency in the judgment, and that it did 
 not appear which of the lessors' rights was established, the court 
 of king's bench in England affirmed the judgment, because, after 
 a verdict, a bare possibility of title consistent with the judgment 
 is sufficient, and the two lessors might have been joint-tenants, 
 
THE JUDGMENT IN EJECTMENT. 683 
 
 and yet refuse to join in a lease. {Morris v. Barry, 2 Strange's 
 R. 1180.) And where two demises are laid in the declaration in 
 ejectment, only one of which is valid, and the judgment of the 
 conrt is, that the plaintiff recover his term, it was sustained, on 
 the ground that it will be assumed in such case that the judg- 
 ment was rendered on the valid demise. {Cox v. Lacy, 3 Litt. 
 R. 334. And vide Throckmorton v. Cooper's Lessee, 3 Munf. E. 
 93. Hopkins v. Ward, 6 ib. 38. Worrell v. Brent, 2 Strange's 
 E. 835.) 
 
 A declaration in ejectment contained two demises by two differ- 
 ent lessors of two distinct undivided thirds, and judgment was 
 given that the plaintiff " do recover his said terms." On error, it 
 appeared from the facts stated in a bill of exceptions to the judge's 
 directions on a point of law, that the ejectment respected only 
 one undivided third. After a very learned argument in the 
 House of Lords, ^TO and con, it was held, that the judgment was 
 well enough on the record when the point was only raised by bill 
 of exceptions, and Sir James Mansfield, chief justice of the com- 
 mon pleas, who delivered the opinion of the judges, insisted that 
 the judgment would have been well, even though the case had 
 come up on special verdict. {Howe v. Poioer, 4 Bos. & Pull. E. 1.) 
 And where the ejectment was upon two demises, by different les- 
 sors, and the second demise was " of the aforesaid premises," and 
 the judgment was entered for the plaintiff as to the first demise, 
 and the defendant as to the other, it was objected, that from not 
 stating the second demise to be of " other premises," the judgments 
 were contradictory to each other, inasmuch as the defendant was 
 put without day, as to the same premises for which the plaintiff 
 recovered ; but the court affirmed the judgment, and construed 
 the aforesaid premises, which the second lessor demised, to mean 
 the term in tiie premises. {Fisher v. Hughes, 2 Strange's E. 908. 
 And vide Shabourne v. Bengo, 1 Ld. Eaym. E. 661. Moore v. Furs- 
 den, 2 Yent. E. 214.) And where, also, the ejectment was for 
 one messuage or tenement and four acres of land to the same 
 belonging, the words " to the same belonging " trere held to be 
 void ; for land cannot properly belong to a house, and then it is a 
 declaration of a messuage or tenement and four acres of landj 
 which, though it be void for the tenement, is good for the land ; 
 for which the plaintiff, upon releasing the damages, was permitted 
 to take judgment. ( Wood v. Payne, Cro. Eliz. 186.) 
 
584 LAW OF EJECTMENT AND ADVERSE ENJOTSIENT. 
 
 If the verdict in the action of ejectment is in favor of the 
 plaintiif for the premises in the declaration described, in general 
 terms, the entry of the judgment is, that the plaintiff recover his 
 term against the defendant, of and in the premises aforesaid, or that 
 he recover possession of the premises aforesaid. {Doe v. Wilson,, 
 2 Starkie's E. 477. Simpson's Heirs v. Shannon's Heirs, 5 Litt. 
 E. 322. Farrow v. Farrow, 2 J. J. Marsh. E. 388.) But when 
 the verdict is in favor of the plaintiff for a part only of the 
 premises claimed in the declaration, and in favor of the defend- 
 ant, for the residue, the judgment is, that the plaintiff recover the 
 possession of the part found for him by the verdict ; and as to the 
 other part, that the defendant go thereof without day. ( Vide 
 Lindsexj v. Clerk, Carthew's E. 290. Same Case, 5 Mod. E. 285. 
 Taijlor y. F^ZSi*?', Cro. Eliz. 768.) "When the verdict of the jury 
 in an action of ejectment is in favor of the plaintiff for too much, 
 the plaintiff may enter a remittitur, and take judgment according 
 to the proof, to avoid a new trial. {McAllister v. Mullanphy, 3 
 Miss. E. 38.) 
 
 If the verdict in ejectment be for the defendant, the judgment 
 must be entered in favor of the defendant accordingly, and for his 
 costs, but the judgment for the costs must be entered against the 
 nominal plaintiff, and not against the lessor. {Doe v. Owen, 2 
 Blackf E. 452.) 
 
 Where one of several defendants in ejectment dies before 
 verdict, and the case goes on against the survivor or survivors, and 
 the plaintiff has a verdict, the judgment should be general that 
 the plaintiff recover his term in the premises against such survi- 
 vors ; although the death of the deceased defendant should be 
 suggested upon the plea roll, and appear in the record. {Far v. 
 Dunn, 1 Burr. E. 362. Gree v. Jiolle,U. Eaym. E. 716. Mgleij 
 v. Zee, Cro. Jac. 356. Zee v. RowTceley, 1 Eolle's E. 14. And 
 vide Darius v. Walsh, 7 Serg. & Eawle's E. 203.) 
 
 The effect of the judgment in the action of ejectment, is in 
 some respects different from that in other actions. For example, 
 a recovery in ejectment does not prejudice the right of the defend- 
 ant, and he may, therefore, bring his action, and recover according 
 to the interest which he had before the recovery against him. 
 {Jackson v. Dieffendorf, 3 Johns. E. 269. Jaokson v. Tuttle, 9 
 Cow. E. 233.) While the general rule is, that the verdict of a 
 jury in a matter directly litigated, where a judgment has followed 
 
THE JUDGMENT IN EJECTMENT. 58^ 
 
 tlie verdict, is a conclusive estoppel as between the same parties 
 and those claiming under them, and they will not again be 
 allowed to controvert the same matter. But the action of eject- 
 ment, at common law, forms an exception to the rule, and in such 
 action the verdict of a jury, either the one way or the other, is no 
 impediment in the way of a further trial between the same parties. 
 The only restraint against an unlimited number of successive 
 actions of ejectment to try the same right, unless a statute inter- 
 venes, is an injunction from a court of equity. Tliis doctrine is 
 very familiar to every lawyer who is conversant with common law 
 practice. Jfevertheless it appears to be equally well settled that 
 when the parties, the premises, and the demise, are the same in 
 both actions, the judgment in a former action is evidence in the 
 record, as against the party against whom it was i-ecovered. {Doe 
 V. Seaton, 2 Or. Mees. & Eos. 731. Wright v. Doe, 1 Adolph. & 
 Ell. E. 19.) But it has been well said that the value of such evi- 
 dence must be very slight, and the courts will not extend the prin- 
 ciple. ( Vide Doe v. Webher, 3 Nev. & Man. E. 746. Doe v. 
 Williams, 1 Car. & Marshman's E. 615.) 
 
 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 these cases, 
 is obviously due to the fictitious character of the action. If a 
 question is tried and determined between John Doe, plaiutiif, and 
 A. B., who eomes in and is substituted defendant in place of 
 Eichard Eoe, the casual ejector, it is plain that A. B. cannot plead 
 the verdict and judgment in another suit brought by John Doe 
 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. 
 
 There was,; perhaps, another reason why the English common 
 law refused to concede to the action of ejectment, which is not 
 purely a real action, that conclusive efiect which it gave to all 
 other actions, namely, the peculiar respect, almost sanctity, which 
 the feudal system attached to the term by which real estate was 
 held. So peculiarly sacred was the title to land with our ances- 
 tors, that they were not willing that the claim to it should, like all 
 other claims, be settled forever by one trial in an ordinary general 
 action, but permitted the unsuccessful party to have other oppor- 
 14. ■ 
 
586 LAW OF bItectment and adverse enjoyment. 
 
 tunitv of establishing liis title. Tliev, however, did concede to 
 those solemn actions, the writ of right and the writ of assize, the 
 same force as estoppel, which they did to personal actions in other 
 cases. 
 
 But whatever the reason of the rule in such cases, it has alwaj's 
 been as above stated ; and at the present day the verdict and 
 judgment in the action of ejectment, whether in favor of the 
 plaintiff or the defendant, is not conclusive, and forms no impedi- 
 ment in the way of another trial between the same parties; 
 although when the parties, the premises and the demise are the 
 same in both actions, the judgment in a former action may be 
 made evidence in tlie new action, as against the party against 
 whom it was recovered. 
 
 It has been decided, that the whole effect of a judgment for the 
 plaintiff in ejectment is to put the lessor of the plaintiff into pos- 
 session of the land ; and the only point decided in tlie action is, 
 that the plaintiff has a better title to the possession than the defend- 
 ant. {Chapman v. Armistead, 4 Mnmf. R. 382.) 
 
 In respect to the costs in the action of ejectment it may be 
 affirmed, that the general rule that persons who are not parties to 
 the record cannot be made liable to the costs of the suit, is not 
 applicable to actions of ejectment over which the coui-ts exercise 
 a stringent and most useful control. In the action of ejectment, 
 the court will order the party really interested to pay costs, although 
 he is neither the defendant on the record nor has entered into the 
 consent rule, nor is in any manner before the court, provided he 
 has interfered in the suit, and carried on the defense. The ground 
 of this distinction is, that in ejectment the action must be brought 
 against the tenant in possession, and the courts wiU therefore not 
 jjermit the party really interested to put a pauper into possession 
 to evade the costs. This doctrine is well settled by the authorities, 
 and little need be said upon the subject here. In actions of eject- 
 ment the courts always make the real party to the suit pay the 
 costs. ' ( Vide Thrustout v. Shenton, 10 Barn. & Ores. E. 110. Doe 
 V. Gray, lb. 615. Beckerley v. Dimery, lb. 113. JacTcson v. Van 
 Antwerp, 1 "Wend. R. 235.) But to entitle a plaintiff in ejectment 
 to call upon parties who are strangers to the record to pay the costs, 
 it must be clearly shown that the defense was conducted by them 
 for their own benefit in the name of the pauper defendant ; it is not 
 enough to show that they are interested as equitable mortgagors 
 
TEE COSTS IN EJECTMENT. 587 
 
 of part of the premises in dispute, and that they have endeavored 
 to make terms with the plaintiff after judgment signed. {Anstey 
 V. Edwards, 1 J. Scott's K. 212. Same Case, 81 Eng. C. L. E. 2U.) 
 Although the authorities are very decided, that where an action 
 of ejectment is defended at the expense and upon the retainer of 
 the parties sought to be charged, they are liable for the costs of 
 the action, although they may be strangers to the record, and 
 claim no interest in the property in controversy themselves. 
 {Hutchinson w Oreenwood, 4 Ellis & Blacliburn's E. 324. Same 
 Case, 82 Eng. C. L. E. 324. Hayward v. Gifford, 4 Mees. & Wels. 
 E. 194.) The manner of reaching the party who is required to 
 pay the costs, varies according to the circnmstances of the case. 
 If the costs are awarded against a party to the record, the remedy 
 is by an execution. If against a party not known to the record, 
 the costs are usually enforced by process of attachment, granted 
 on application to the court. ( Yide Doe v. Owen, 2 Blackf. E. 452. 
 The People v. Bradt, 6 Johns. E. 318. Same Case, 7 ib. 539. 
 Brown v. Dement, 9 Cow. E. 263. Jaohson v. Edwards, 1 ib. 138. 
 Jaokson v. Stiles, 3 Cai. E. 140.) To warrant an attachment for 
 not paying costs against the lessor in ejectment, on judgment for 
 the defendant upon verdict, the rule seems to require that a capias 
 ad satisfiaciendum, against the nominal plaintiff be first exhibited ; 
 but like many other rules of practice, it is not easy to discover the 
 principle on which this one rests. {The People v. Merritt, 7 Cow. 
 E. 415.) And in the court of common pleas of England, the capias 
 ad satisfaciendum in such cases was omitted, although the settled 
 practice of the king's bench was the other way. {Doe v. Salter, 
 3 Taunt. E. 485. Eunn. on Eject. 416, 417.) 
 
 A party who may simply assist the plaintiff or defendant in the 
 prosecution or defense of the action of ejectment at his own cost, 
 and who has no interest in the premises in suit, cannot be made 
 liable for the costs adjudged to the prevailing party in the action. 
 {Doe V. Smith, 8 Dowl. Practice Cases, 517.) ISTor can the party 
 in possession recover, as costs against the claimant, the costs of any 
 rules for setting aside proceedings for irregularities, unless he has 
 appeared to the action, or signed the consent rule. {Doe v. Poe, 
 1 Adolph. & Ell. E. 14. Goodt/itle v. Badtitle, 9 Dowl. P. C. 1009.) 
 
 "Where the action of ejectment is undefended, and the judgment 
 is against the casual ejectoi-, under the old common law practice, 
 the only remedy of the claimant for his costs is in an action for 
 
588 LAW OF EJECTMENT AND ADVEESE ENJOYMENT. 
 
 mesne profits, on -which, at the discretion of the jury, they are 
 recoverable as consequential damages-. But "vvhere there are 
 several defendants, some of whom appear and confess, but others 
 do not appear, and a verdict is found against those who do appear, 
 each defendant is liable for the -whole costs and the plaintiff's 
 lessor may tax them all against any one or all of the defendants at 
 tlio same time; that is to say, upon the portion against those -who 
 appear, and upon the consent rule against those ■\vho do not appear; 
 and if after satisfaction from one defendant for the costs, he takes 
 out execution against another, the court -will interfere to prevent 
 it. The claimant cannot, however, separate the costs and tax 
 part of them against one defendant and part against another. 
 {Thrustout V. Foot, BuUer's IST. P. 335. Doe v. Hughes, 5 Tyr. 
 E. 9i7. Same Case, 4 Dowl. P. C. 412. And vide Herbert v. , 
 Alexander, 2 Call's E. 498.) 
 
 The landlord or other person -who is entitled to be substituted in 
 the place of, or joined with, the defendant in an ejectment suit, 
 who, without causing himself to be made a party, defends such suit 
 tmsuccessfuUy in the name of the original defendant, will be 
 ordered to pay the costs of the plaintiff, after execution against 
 the defendant on the record has been returned unsatisfied. {The 
 Farmers'' Loan and Trust Company v. Kursch, 5. N". Y. E. 558. 
 Vide Noland v. Seehright, 6 Mumf. E. 185. Jackson v. Bathlone, 
 3 Cow. E. 291. Griffeth v. Dobson, 3 Penn. E. 228. Jackson v. 
 Ilawley, 11 Wend. 183. Smith v. Hornlach, 33 A. K. Marsh. E. 
 392. Robertson v. Morgan, 2 Bibb's E. 148. Gulion v. JDrinkwater, 
 1 Term E. 261. 
 
 Where the lessor of the plaintiff in ejectrhent was an infant 
 and the plaintiff was nonsuited, and the infant's father, who 
 prosecuted the suit, was dead, the court ordered the infant to pay 
 the costs. Yet, says the book, it was doubted, because of his 
 infancy ; but if the father had been alive, the court would have 
 made \\\m pay the costs; or, if he had left assets, his executor. 
 {Anonymous, 1 Freeman's E. 378.) 
 
 In respect to the execution in the action of ejectment, it may be 
 affirmed that no tenant who was in possession of the premises 
 recovered by the judgment anterior to the commencement of the 
 action, can be dispossessed upon a judgment and writ of posses- 
 sion to which he is not a party. And if a tenant, whose possession 
 is distinct fi-om that for which the action was brought, be tarfied 
 
THE EXECUTION IN EJECTMENT. 589 
 
 out, lie may have a writ of restitution. {Ex parte Reynolds, 
 1 Cai. U. 500.) And, according to a comparatively late case in 
 England, it would seem to be imprudent for the lessor of the 
 plaintiff, on recovering judgment, to attempt to tahe possession 
 of the premises recovered without suing out the regular writ. 
 {Dear v. Lord, 7 Adolph. & Ell. E. 610.) But it has been held 
 in this country, that the lessor of the plaintiff in ejectment, after 
 a judgment for him, may enter peaceably without the writ. The 
 judgment would seem to be evidence of his right of entry, as 
 between the parties and privies, so as to protect him against an 
 action of trespass ; but, after the expiration of the demise as laid 
 in the declaration, he cannot enforce the judgment, even by execu- 
 tion. {Jackson v. Ilaviland, 13 Johns. R. 229. Smith v. Ilorn 
 loch, 3 A. K. Marsh. E. 193. Wood v. Coghill, 7 Monroe's E. 601. 
 Doe V. Black, 3 Campb. E. 447.) 
 
 The writ of execution in ejectment is called the writ of habere 
 facias possessionem, and answers to the habere facias seisinam in 
 the old real action ; for, as in the one case, the freehold being 
 recovered, the sheriff is ordered to give the demandant seisin of 
 the lands in question, so also, in the other case, the possession 
 being recovered, the sheriff is commanded to give execution of the 
 possession. The. writ of habere facias possessionem issues as a 
 matter of course where the plaintiff recovers a judgment upon 
 the verdict of a jury ; but, where the landlord defends, or if the 
 plaintiff' be nonsuited because of the defendant's refusal to appear 
 and confess, the lessor cannot sue out a writ of possession upon 
 the judgment against the casual ejector without leave of the court, 
 and only a rule to show cause is granted in the first instance. 
 {Doe V. Burnett, 4 Barn. & Ores. E. 897.) 
 
 In executing the writ of possession, the plaintiff acts at his peril; 
 and, if he takes more land than he has established his right to, the 
 court will interfere in a summary way, and compel him to mate 
 restitution. {Jaclcson v. Bathbun, 3 Cow. E. 291. Camden v. 
 Bashill, 3 Eand. E. 465. Boe v. Dawson, 3 "Wils. E. 49. Doe 
 V. Wilson, 2 Stark. E. 477.) 
 
 The writ of possession may be without a return day, so that it 
 may be re-executed if the defendant forcibly re-enter; or, new 
 process may be awarded by the court, if defendant, or one deriving 
 titltS under him, re-enter. {Jaclcson v. Hawley, 11 Wend. E. 182. 
 Doe v. Boe, 14 Adolph. & Ell. E. N. S. 806. Same Case, 82 Eng. 
 
590 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 C. L. E. 805.) It has been held, however, that if the plaintiff is 
 again ousted by the defendant, after the defendant has been 
 removed from the premises, and the plaintiff pnt in, on a habere 
 facias possessionem, he cannot have another execution on the 
 same judgment, but must resort to another action; and this 
 doubtless is the rule where the last ouster occurs after the writ 
 has been fully executed and the plaintiff has obtained complete 
 possession under the writ. {Ilinton v. McNiel, 5 Ham. E. 509.) 
 
 The sheriff may demand indemnity from the plaintiff previously 
 to the execution of the writ ; and where he has to deliver possession 
 of any particular number of acres, he must estimate them according 
 to the custom of the country in which the lands are situated. The 
 possession to be given by the sheriff is a full and actual possession, 
 and he is armed with all power necessary to this eiid. For example, 
 if the recovery be of a house, and he be denied entrance, he may 
 justify breaking open the door, for the writ cannot otherwise bo 
 executed. (Semayne''s Case, 5 Coke's E. 91, J.) 
 
 If the lessor recover several messuages in the possession of dif- 
 ferent persons, the slieriff must go to each of the several houses, 
 and severally deliver possession thereof, by turning out the ten- 
 ants ; the delivery of the possession of one messuage in the name 
 of all is not a good execution of the writ, for the possession of one 
 tenant is not the possession of the other. But if the several mes- 
 suages are in the possession of one tenant onlj^, it is sufficient if he 
 give possession of one messuage in the name of all. ( Vide Floyd 
 V. Beihill, 2 EoUe's E. 420.) And if the recovery is for land, the 
 same distinction prevails. (1 Eolle's Ab. 886, H. 2.) If there be 
 crops growing on the premises recovered, the sheriff must also 
 deliver them to the plaintiff" with the land ; and this even though 
 the crops are severed at the time of the execution of the writ, if 
 the severance have occurred since the demise in the declaration. 
 ( Vide Doe v. Witherwick, 3 Bing. E. 11. Hodgson v. Gascoigne, 
 5 Barn. & Aid. E. 88.) 
 
 The writ of possession will not be regarded as fully executed 
 until the sheriff and his officers are gone and the plaintiff is left in 
 quiet possession. {Kingsdale v. Man, 6 Mod. E. 27. Same Case 
 Salk. E. 321.) 
 
 When a sole defendant in ejectment dies after judo-nient, and 
 before execution, the safer way is to sue out a scire facias, although 
 it has been doubted whether a scire facias is necessary in such case 
 
THE WRIT OF ERROR IN EJECTMENT. 591 
 
 for the reason that the execution is of the land only, and no new 
 person is charged ; bnt, at all events, the surer way is to proceed 
 by scire facias. And, as a scire facias for the land must issue 
 against the ter-tenant, whoever he may be, it will be also necessary 
 to sue out another scire facias for the costs against the personal 
 representative, unless he be himself the ter-tenant. ( Withers v. 
 Harris, Ld. Eaym. E. 806. Nolan v. Seehright, 6 Munf 185. 
 Bradford v. Bradford, 5 Conn. E. 127.) The question of the 
 death of the plaintiff, in the action of ejectment at common law, 
 cannot arise, because the nominal plaintiff never dies ; but if one 
 of two or more lessors of the plaintiff should die after judgment, 
 an execution may be taken out by the survivors without a scire 
 facias, upon making suggestion- on the roll ; and the same nile 
 will apply where there are more defendants than one ; after the 
 death of one, execution may be taken out without a sci7-e facias. 
 {Howell V. Eldridge, 21 Wend. E. 678.) 
 
 Where the judgment in ejectment is against a feme sole, who 
 marries before execution, the plaintiff's lessor should sue out a 
 habere facias possessionem in the maiden name of the defendant 
 for the land, and then proceed by scire facias against the husband 
 and wife for the costs. {Doe v. Butcher, 3 Maule & Selw. E. 557.) 
 
 Where, in ejectment, the tenants make separate defenses, and 
 separate judgments are entered against them, one of the defend- 
 ants may move to quash the writ of possession issued, without the 
 concurrence of the others. {Lowry v. Jenhins, 3 Bibb's E. 314.) 
 
 A writ of error in the action of ejectment may be brought as in 
 other actions, where the judgment is entered upon a verdict ; but 
 it lias been doubted whetlier the writ can be brought in the name 
 of the casual ejector, and, consequently, that it. will not lie until 
 after verdict. {Roe v. Hoe, Barn. E. 181. Doe v. Hoe, 7 Dowl. 
 P. 0. 916.) It has, however, been held in one case, at least, that 
 a writ of error in the action of ejectment may be brought in the 
 name of the casual ejector. {Roe v. Banh of the United States^ 
 Ohio [Con.] E. 490.) If the defendant in the common law action 
 of ejectment refuse to confess at the trial, he will be precluded 
 from bringing error, because the plaintiff will then be nonsuited 
 as to him, and the judgment will be entered against the casual 
 ejector. But where the landlord defends alone, and the verdict is 
 found against him, error may be brought, notwithstanding the 
 judgment upon which the execution issues, is entered against the 
 
592 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 casual ejector; for a judgment is also in existence against the land- 
 lord, and upon that judgment thewrit of error may be taken out 
 in tlie landlord's name. {George v. Wisdern, 2 Burr. E. 756.) 
 
 The practice upon the writ of error in cases of ejectment is the 
 same as in other cases, and need not be referred to here. 
 
 CHAPTER XXXIV. 
 
 OF BRINGING A SECOND EJECTMENT — STAYING PEOCEEDINGS IN THE ACTION. 
 
 It has been heretofore stated in respect to the effect of a judg- 
 ment in the action of ejectment, that a recovery does not prejudice 
 the rights of the defendant. It is manifest, therefore, that a judg- 
 ment in ejectment confers no title upon the party in whose favor 
 it is given, and can never be final. A judgment in ejectment 
 simply authorizes the plaintiff to take possession of tlie premises, 
 whoever may be in possession of them ; and the judgment generally 
 terminates all presumption in favor of the defendant's title, arising 
 from prior possession. But though one has recovered in ejectment, 
 yet the recovery is not conclusive upon the defendant or those 
 claiming under him ; and it is always in the power of the party 
 failing, whether claimant or defendant, to bring a new action ; 
 that is to say, this is the general rule, unless there is a statute upon 
 the subject, changing the rule at common law. A third person 
 may, therefore, purchase the title of the defendant in an action of 
 ejectment, even after the recovery of a judgment against him, and 
 bring a second action of ejectment against the former recoverer in 
 possession, and the former judgment cannot be pleaded as an 
 estoppel ; or the defendant in the former action may acquire the 
 title of some third person to the premises in dispute, that is, of a 
 person who was not a party or privy to the former judgment, and 
 then bring a new action of ejectment against the former plaintiff 
 in possession, who will not be permitted to set up the former judg- 
 ment as an estoppel in the second action. The same rule applies 
 to the plaintiff in the former action. Though the defendant may 
 have a verdict in his favor in the action, the judgment creates no 
 estoppel to the title of the plaintiff. {Jackson v. Tuttle, 9 Cow. 
 
THE SECOND ACTION OF JSJECTMENT. 593 
 
 E. 233. Bradford v. Bradford, 5 Conn. E. 12T.) The structure 
 of the record, in the action of ejectment, as has been stated in 
 another place, 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, etc., may be laid many 
 diiferent ways, it is impossible to make it appear that the second 
 ejectment is brought upon the same title as the first. Hence the 
 rule in this action. {Ropldns v. M^ Lauren, 4 Cow. E. C67. Whits 
 V. Kyle's Lessor, 1 Serg. & Eawl. E. 515. Richardson v. Stewards 
 Lessor, 2 ib. 87. Ives v. Lott, 14: ih. 301. But vide Hammond v. 
 Ridgeley's Lessor, 5 Har. & Johns. E. 245, 267.) 
 
 In Selden's old practice of the courts, it is said, " that it has 
 sometimes been attempted in chancery, after three or four eject- 
 ments by a hill of peace, to establish the prevailing party's title ; 
 yet it has always been denied, for every termor may have an eject 
 meut, and every ejectment supposes a new demise, and the costs 
 in ejectment are a recompense for the trouble and expense to which 
 the possessor is put. But that when the suit begins in chancery 
 for relief touching pretended incumbrances on the title of lands, 
 and the court has ordered the defendant to pursue an ejectment at 
 law, then, after one or two ejectments tried, and the right settled 
 to the satisfaction of the court, the court has ordered a perpetual 
 injunction against the defendant ; because there the suit is first 
 attached in that court, and never began at law, and such prece- 
 dent incumbrances appearing to be fraudulent, and inequitable 
 against possession, it is within the compass of the court to relieve 
 against it." (2 Sell. Prac. 144.) The later authorities, however, 
 hold to a contrary practice. The courts of equity will always 
 interfere in a proper case, and grant a perpetual injunction when 
 it is apparent that a subsequent action is brought to harass the 
 party, or it appears that the whole matter has been decided in the 
 same way, by say two or three similar verdicts and judgments ; 
 and in some cases the sarrie court in which the subsequent action 
 is pending Avill grant the defendant relief, and stay further pro- 
 ceedings. ( Vide Ramhle v. Tryon, 7 Serg. & Eawlc's E. 90. 
 Cherryh Lessee v. Rohinson, 1 Yeates' E. 521. Barefoot v. Fry, 
 Banbury's E. 138. Ldghton v. Leighton, 1 P. "Wm. E. 670. 
 Deardon v. Lard Byr&n, 8 Price's E. 417.) The difficulty of en- 
 forcing at law the estoppel of former verdicts and judgments in 
 ejectments, induced courts of equity at a very early day (which, un- 
 15 
 
694 IjAit of ejectment and adverse enjotiient. 
 
 restrained by the technicality, could look past the nominal parties 
 to the real ones) to interfere, after a sufficient number of trials 
 had taken place, to determine fairly the validity of the title , and 
 by injunction directed to the unsuccessful litigant, compel him to 
 cease from harassing his opponent by useless litigation. 
 
 Indeed, a perpetual injunction will sometimes be granted by a 
 court of equity to quiet the possession of real estate, if the com- 
 plainant has the title, although there has been no previous trial at 
 law ; as when the party having the possession is disturbed, but not 
 so dispossessed as to make it the subject of an action at law. 
 • {Trustees of Louisville v. Gray, 1 Litt. E. 148.) And the peculiar 
 state of the property, and the oppressive nature of tlie litigation 
 at law as to the title, always afford a proper foundation for 
 equitable jurisdiction, and when the title set up by the plaintiff 
 was sufficiently established at law before lie came into chancery, 
 or has been established to the satisfaction of the court of equity, 
 either upon its own view of the testimony, or by verdict upon one 
 or more issues, to be awarded at its discretion, the court will then 
 declare that right by decree, and protect it by perpetual injunction. 
 But the plaintift''s title must be clear, or the bill will be dismissed. 
 {Nicoll V. Trustees of Huntington, 1 Johns. Cli. K. 166.) 
 
 The discretionary power exercised by the courts in the regula- 
 tion of ejectments is frequently called forth by applications from 
 the defendant to stay the proceeding in the action. Some cases 
 in which the proceedings are stayed by statute, as in ejectment 
 between landlord and tenant in certain cases, have already been 
 referred to in the detail of the regular practice in the action ; but 
 it is proposed to give the subject a mpre distinct consideration in 
 this place. 
 
 Where the ejectment is brought on the forfeiture of a lease, the 
 proceedings will be stayed upon the application of the tenant, 
 until the lessor of the plaintiff has delivered particulars of the 
 breaches of covenant, on which he intends to rely; and it was 
 formerly the practice in such a case to grant a summons for this 
 purpose before the tenant had appeared in the action, pr entered 
 into tlie consent rule. {Doe v. Phillips, 6 Term II. 597.) 
 
 In ejectment, where the tenant, after suit brought, offers to sur- 
 render the premises, to pay the plaintiff's costs and to enter into 
 a stipulation as to mesne profits, giving the plaintiff the same 
 rights as if judgment was entered against the casual ejector, the 
 
STAT OF PROCEEDINQS IN EJECTMENT. 695 
 
 court will stay the proceedings in the action. In a case in the old 
 supreme court i« the state of New York, where the tenant had 
 made substantially similar offers to these, which being declined by 
 the plaintiff, the defendant made a motion to stay the proceedings 
 in ejectment; the court, by Sutherland, J., said: "The conduct 
 of the plaintiff is oppressive, and the defendant has offered to do 
 all that could be required of him. A tender of amends cannot be 
 pleaded in this action ; the court therefore order that all proceed- 
 ings on the part of the plaintiff be stayed for thirty days ; that he 
 procure the costs in the suit which accrued previous to the 17th 
 November last to be regularly taxed and demanded of the tenant; 
 and if such costs be paid within twenty days after demand, and 
 the possession of the premises in question quietly surrendered to 
 the lessor upon demand made, then all further proceedings in this 
 cause to be perpetually stayed." The court further ordered that 
 the lessor of the plaintiff pay the costs of the application. The 
 judgment was permitted to stand, to enable the plaintiff to avail 
 himself of it in support of his action for mesne profits. {Jackson 
 V. Stiles, 3 Wend. E. 429.) 
 
 "Where the lessee of the plaintiff is an infant, the court will stay 
 the proceedings until security be given for the costs, unless a 
 responsible person has been made the plaintiff in the suit, or the 
 father or guardian undertake to pay them ; and an inquiry as to 
 these tacts should be made previously to the, application. (looker. 
 Wind/iam, Strange's E. 694. Throgmorton v. Smith, lb. 932. 
 Anonymous, 1 Wils. R. 130. Anonymous, 1 Cowp. E. 129. Doe 
 V. Hoherts, 6 Dowl. P. C. 556.) But where the lessors of the 
 plaintiff in ejectment are infants, it is too late, after verdict for 
 the defendant, to move for security for costs, {Jackson v. Bush- 
 nell, 13 Johns. E. 330.) 
 
 The proceedings in 'the action of ejectmen]; will also be stayed 
 until security be given for costs, where the lessor of the plaintiff 
 is a non-resident ; although it seems that some of the lessors of 
 the plaintiff in ejectment reside out of the state and others in it, 
 the court will not stay the proceedings until security for costs is 
 given. {Dun v. Fulford, 2 Burr. E. 1177. Anonymous, 2 Penn. E. 
 886.) Where the lessor is unknown to the defendant, the latter 
 may demand an account of his residence or place of abode from 
 the lessor's attorney, and if he refuse to give it, or give a fictitious 
 account of a person who cannot be found, proceedings will be 
 
596 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 stayed until security for costs be given. {Short v. King, Strange's 
 E. 681.) 
 
 The courts will also interfere to stay the proceedings in the 
 action of ejectment where the costs of a prior ejectment upon 
 the same title, or between the same parties are left unpaid. {BuWs 
 Lessee v. Sherdine, 1 Ilarr. & Johns. E. 206. Den v. Thompson, 
 2 Green's E. 193. Cuyler v. Vanderwert, 1 Johns. Gas. 247. 
 Perkins v. Hinman, 19 Johns. E. 237. Jackson v. Edwards, 1 
 Cow. E. 138.) It was formerly held, that the court ought not to 
 interfere in such eases, unless the two ejectments werfe brought in 
 the same court ; but tliis limitation no longer prevails, and it is 
 now immaterial in what court the first ejectment is brought. 
 {Ex parte Stone, 3 Gow. E. 380. Doe v. Atherly, 1 Modem E. 
 420. Anonymous, 1 Salk. E. 255. Holdfast v. Jackson, Barn. 
 E. 133. Doe v. Law, Elk. E. 1158. Doe v. Stephenson, 3 Bos. 
 & Pull. E. 22.) And it is of no consequence whether the 
 two ejectments are brought upon the demise of the same or dif- 
 ferent persons, against all or some of the same parties, or for the 
 same or different premises, provided they are brought upon the 
 same title and for the recovery of part of the same estate. {Medway 
 V. Harbent, Gomberback's E. 106. Doe v. Ilattruly, 3 Strange's 
 E. 1152. Thrustout v. Holdfast, 6 Term E. 223. Keene v. Angel, 
 lb. 740. Doe v. Roe, 8 ib. 645. Doe v. Shadwell, 7 Dowl. P. C. 
 527. Doe v. Roe, 8 ib. 444. Doe v. Thomas, 4 Adolph. & Ell. 
 E. 348. Doe v. lioe, 5 ib. 878. Doe v. Ilowland, 10 ib. 761.) 
 And a change in the situation of the parties in the action is also 
 immaterial. If the defendant in the second action had been the 
 claimant in the first, or vice versa, the proceedings in the last 
 ejectment will be stayed until the costs of the prevailing, party are 
 paid in the first. {Thurstout v. Holdfast, supra.) The rule will 
 also be granted, whether the merits be decided in the former 
 action, or whether there be a judgment of nonsuit, or of non-pros., 
 or even if the first action be discontinued before the consent rule 
 or plea ; nor is the length of time which elapses between the two 
 actions any bar to the rule. {Doe v. Langdon, 5 Barn. & Adolph. 
 E. 864. Deuce v. Ddble, Gomberback's E. 110. Keene v. Angel, 
 2 Term E. 740. Anonymous, Salk. E. 255.) But the court will 
 not stay proceedings in ejectment till the costs of a former eject- 
 ment are paid, unless it appears that the same title was or might 
 have been tried in the fbrmer suit, {Jackson v. Stiles, 2 Cow. E. 596.) 
 
STAT OF PBOOEEDINOS IN EJECTMENT. 597 
 
 Where the tenant of the lessors in an action of ejectment defended 
 a former ejectment brought against him, but failed, and had judg- 
 xnent against him for costs, and was turned out of possession upon 
 a writ of habere facias possessionem, and the same lessors afterward 
 brought ejectment against the lessor of the plaintiff in the first 
 suit for the same premises, and upon the same title, the court 
 ordered the proceedings in the second action to stay, until the 
 costs of the first were paid ; and it was declared that this n;le 
 would have been granted, although one of the lessors in the second 
 action had not demised to the defendant in the first. {Jackson v. 
 Edwards, 1 Cow. E. 138.) The general rule, as laid down in the 
 books of practice, is, that where the same title to the same prem- 
 ises is drawn in question in the second suit in ejectment between 
 parties or privies to the first, the court will order a payment of 
 the costs of the first before they will suffer the second to proceed. 
 (Vide Tidd's Prac. 479, 480. Dunlap's Prac. 1025, 1026.) But 
 it neverth'eless seems to be the rule, that it must appear that the 
 lessors of the plaintiff in the first suit, or some of them, are retained 
 in the second, or the lessors in the second suit are privy to the 
 lessors in the first, or the court will not stay proceedings in the 
 second suit till the costs of the first are paid. The fact that the 
 lessor of the plaintiff in the second suit claims under the same 
 title, as was claimed iu the first, is not suflacient to justify the stay. 
 {Jackson, v. Clarh, 1 Cow. E. 140.) 
 
 The court will stay the proceedings in a second ejectment until 
 the costs of a former one are paid, if the conduct of the party has 
 been vexatious or oppressive, although he may not be liable to the 
 costs of the first action. {Smith v. Barnardistan, "W. Black. E. 
 904.) And when the claimant obtained possession of the disputed 
 premises, as upon a vacant possession, after having brought some 
 unsuccessful actions, the court set aside the judgment and execu- 
 tion, and directed proceedings to be stayed until security should be 
 given for costs. {Harvey v. Baker, 2 Dowl. W. S. 75.) 
 
 The courts will also stay proceedings in actions of ejectment 
 where the lessor of the plaintiff has two or more actions depend- 
 ing at the same time, for the same premises, in the same or differ- 
 ent courts, and the proceedings in the one or more actions will 
 thus be stayed until the remaining one is determined. {Thrustout v. 
 TrouMesome, Strange's E. 1099. Doe v. Bunton, 6 Bing. E. 469. 
 2 Sell. Prac. 144.) And when several causes in favor of the same 
 
598 law: of ejectment and adverse enjoyment. 
 
 plaintiff, though against different defendants, concerning the title 
 to property, depend upon the same question and the same evidence, 
 either party may move that only one of the causes be tried, and 
 that the others abide the event ; and if the fact that the questions 
 and evidence are the same in all, be not disputed by aifidavit, the 
 motion veill be granted ; otherwise, if that fact be denied, or 
 appear to be doubtful, and where several causes concerning the 
 title to land, in favor of the same plaintiff, against different 
 defendants, were noticed for trial, and one was tried, in which the 
 plaintiff was nonsuited, npon which his counsel gave notice that 
 as all the cases depended on the same questions, the others would 
 not be tried, and a case was made, and an order obtained to stay 
 proceedings in the cause tried, with a view to a motion for a new 
 trial; and on motion for judgment in a case of nonsuit, the 
 plaintiff's attorney swore that the title and evidence of the plaintiff 
 was the same in all the causes, — Jhe court held that unless the 
 defendants would file affidavits in twenty days, that the questions 
 and evidence were not the same in all the causes, the motion should 
 be denied ; and that the causes mentioned should abide the event 
 of the one last tried ; and that, if such affidavits shoxild be filed, 
 the plaintiff should pay costs of the circuit. (Ja.ckson v. Schauler, 
 4 Cow. E. 78. And vide Doe v. Bennett, 9 Dowl. P. C. 1012.) 
 
 When the party, against whom a verdict in ejectment has been 
 obtained, brings a writ of error, and, pending that writ, commences 
 a second ejectment, the court will order the proceedings in the 
 second action to be stayed until the writ of error is determined ; 
 and it seems also that if it do not appear to the court tliat the 
 writ of error was brought with some other view than to keep off 
 the payment of costs, proceedings will be stayed until the costs of 
 the first action are paid, notwithstanding such costs are suspended 
 by the writ of error. {Fenwich v. Grosvenor, 1 Salk. E. 228. 
 GrumUe v. Bodily, Strange's E. 554.) But it has been held that 
 the proceedings in an action of ejectment will not be stayed until 
 the costs of a suit in equity, brought by the same party for the 
 recovery of the premises in controversy, are paid. {Doe v. Winch 3 
 Barn. & Aid. E. 602. StebUns v. Grant 19 Johns. E. 196.'' 
 
 "When an ejectment was brought on two demises, and a verdict 
 was taken for the plaintiff on the first demise, with liberty for him 
 to move to enter a verdict for him in the second demise he is not 
 precluded from doing so by having obtained early execution on 
 
EJECTMENT IN GREAT BRITAIN. 599 
 
 the verdict on the first demise, and possession taken nnder 
 it. (JDoe V. Gharribers, 4 Adolph. & Ell. E. 410.) But the court 
 has ordered the proceedings in a second ejectment to be stayed 
 until the cost of an action for mesne profits (upon which the lessor 
 in the second ejectment, who had been the defendant in the first, 
 had brought a writ of error) as well as the costs of the first eject- 
 merit, were paid. {Doe v. Roe, 4 East's R. 585.) 
 
 The courts will not stay the proceedings in the second ejectment 
 where the party against whom the application is made is already 
 in custody under an attachment for non-payment o_f the costs of 
 the first action. {Doe v. Barclay, 15 East's K. 833. Eaton v^ 
 Wyckoff, 4 Wend. E. 203.) Neither will the court stay the pro- 
 ceedings in the second ejectment, if it clearly appear that the 
 verdict in the first action was obtained by fraud and perjury. 
 {Doe V. Thomas, 2 Barn. & Ores. E. 622.) And it has also been 
 held that the court has no power to stay the proceedings in a 
 writ of right, till the costs of a prior ejectment are paid ; it is a 
 . totally different 'thing. It is declared that the rule often operates 
 with hardship in ejectment, and it would be more liable to do so 
 in a writ of right, by preventing a party who was poor from assert- 
 ing his title. {Chatfield v. Stouten, 3 Bing. E. 167.) 
 
 CHAPTEE XXXV. 
 
 THE ACTION TO EECOVEE EEAL PEOPEETT IN GEEAT BEITAIN — THE 
 PEAOTICE UNDEE THE COMMON LAW PEOCEDUEE ACT OF THAT 
 KINGDOM. 
 
 Much of the preceding discussion has been limited to the action 
 of ejectment as prosecuted at common law, although a large pro- 
 portion of what has been said has a general application, and all 
 of the principles enunciated have a more or less important bearing 
 upon the action to recover real property in all civilized countries 
 at the present day. But it is proposed now to consider, as briefly 
 as may be, the practice which prevails at the present time in 
 respect to the action to recover real property in the several states 
 It may not be amiss, however, before entering upon the subject in 
 
600 LAW OF EJECTMENT ANB ADVERSE ENJOYMENT. 
 
 respect to the American states, to consider tlie same question as it 
 is now regulated bj the practice in the kingdom of Great Britain. 
 
 The old action of ejectment, with all its harmless, curious aud 
 amusing fictions, was invented by the English judges centuries 
 ago, and was retained, with little or no substantial change, in 
 England until the year 1852, when the British parliament, giving 
 way to the spirit of modern improvement or innovation, adopted 
 an act to amend the process, practice and mode of pleading in the 
 superior courts of common law at "Westminster, and in the superior 
 courts of the counties palatine of Lancaster and Durham, by which 
 all the fictions of the action of ejectment are entirely abolished, 
 and the action in other respects greatly modified and improved. 
 
 In respect to the action to recover real property in England, it 
 is now provided, that, instead of the late proceeding by ejectment, 
 a writ shall be issued, directed to the persons in possession by 
 name, and to all persons entitled to defend the possession of the 
 property claimed, which property must be described in the writ 
 with reasonable certainty. The writ must state the names of all 
 the persons in whom the title is alleged to be, and command the 
 persons to whom it is directed to appear, within sixteen days after 
 service thereof, in the court from which it issued, to defend the 
 possession of the property sued for, or such part thereof as they 
 may think fit ; and it must contain a notice, that in default of 
 appearance they will be turned out of possession. The writ is 
 required to bear teste of the day on which it was issued, and it 
 will continue in force for the space of three months from the time 
 it was issued. The writ is required to be in the form prescribed 
 in the act, or to the like effect, and which varies according to the 
 fact whether the defendant resides within the jurisdiction of the 
 court in which the action is brought, or, being a British subject, 
 resides out of the jurisdiction of the court, or, not being a British 
 subject, resides out of the jurisdiction of the court from which the 
 writ issues ; and is to be in the form prescribed for writs in other 
 actions prosecuted in the common law courts. The act requires 
 that the name and abode of the attorney issuing the writ, or, if no 
 attorney, the name and residence of the party, shall be indorsed 
 thereon, in like manner as is enacted with reference to the indorse- 
 ments on a writ of summons in a personal action ; and it is pro- 
 rided, that the same proceedings may be had to ascertain whether 
 the writ was issued by the authority of the attorney whose name 
 
EJECTMENT IN GREAT BRITAIN. 601 
 
 was indorsed thereon, and who and what the claimants are, and 
 their abode, and as to staying the proceediugs upon writs issued 
 without authority, as in the case of writs in personal actions. 
 
 The writ in the action must be served in the same manner as an 
 ejectment was served at common law, or in such manner as the 
 court or judge shall order, and in case of vacant possession, by 
 posting a copy thereof upon the door of the dwelling-house oi 
 other conspicuous part of the property. The action is still 
 christened an action of ejectment. The persons named as defend- 
 ants in the writ, or either of them, will be allowed to appear in 
 the action within the time appointed ; and any other person not 
 named in the writ may, by leave of the court or a judge, be allowed 
 to appear and defend, on filing an affidavit showing that he is in 
 possession of the land either by himself or his tenant. 
 
 Any person appearing to defend the action as landlord in respect 
 of property, whereof he is in possession only by his tenant, is 
 required to state in his appearance that he appears as landlord ; 
 and such person is at liberty to set up any defense which a land- 
 lord appearing in an action of ejectment at common law is allowed 
 to set up, and no other. 
 
 Any person appearing to a writ of ejectment is at liberty to limit 
 his defense to a part only of the property mentioned in the writ, 
 describing that part with reasonable certainty in a notice entitled 
 in the court and cause, and signed by the party appearing or his 
 attorney. This notice must be served within four days after - 
 appearance upon the attorney whose name is indorsed on the writ, 
 if any, and if none, then it must be filed in the master's office ; and 
 an appearance without such notice, confining the defense to part,* 
 will be deemed an appearance to defend for the whole. 
 
 It is declared by the act that want of " reasonable certainty " in 
 the description of the property, or part of it, in the writ or notice, 
 shall not nullify them, but shall only be ground for an application 
 to a judge for better particulars of the land claimed or defended, 
 which a judge shall have power to give in all cases. The court or 
 a judge has the power by the act to strike out or confine appear- 
 ances and defenses set up by persons not in possession by them- 
 selves or their tenants. 
 
 In case no appearance shall be entered into within the time 
 appointed, or if an appeatance be entered, but the defense be 
 limited to part only, the plaintiffs are at liberty to sign a judg- 
 V6 
 
602 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ment that the person whose title is asserted in the writ shall 
 recover possession of the land, or of the part tliereof to ■whieli 
 the defense does not apply; which judgment, if for all, may be in 
 the form prescribed by the act or to the like effect, and if for part, 
 may be in the form also prescribed by the act, or to the like effect. 
 In case an appearance is entered, an issue may at once be made 
 xip, without any pleadings, by the claimants or their attornej-, set- 
 ting forth the writ, and stating the fact of the appearance, with its 
 date, and the notice limiting the defense, if any, of each of the per- 
 sons appearing, so that it may appear for what defense is made, 
 and directing the sheriff to summon a jury ; and the issue, in case 
 defense is made for the whole, may be in the form contained in 
 schedule A to the act annexed, marked number sixteen, or to the 
 like effect, viz. : 
 
 " In 'the Queen's Bench : i 
 
 On the day of A. D. 18 . ) 
 
 Cumberland, to wit : On the day and year above written", a writ 
 of our Lady the Queen issued forth of this court, in these words, 
 that is to say, 
 
 Victoria, by the Grace of God (here copy the writ) ; and C. D. 
 has on the day of appeared by his attorney 
 
 (or in person), to the said writ, and defended for the whole of the 
 land therein mentioned : Therefore, let a jury come," etc. 
 
 If the defense is made for a part only, the issue may be in the 
 form contained in the schedule, marked nlimber fifteen, or to the 
 •like effect, viz. : 
 
 " In the Queen's Bench : ^ 
 
 On the day of A. D. 18 . f 
 
 Cumberland, to wit : On the day and year above written, a writ 
 of our Lady the Queen issued forth of this court in these words, 
 that is to say, 
 
 Victoria, by the Grace of God (here copy the writ) ; and C. D. 
 has on the day of appeared by his attorney 
 
 (or in person), to the said writ, and has defended for a part of the 
 land in the writ mentioned; that is to say (here state the part), 
 and no appearance has been entered or defense made to the said 
 writ, except as to the said part : Therefore, it is considered that 
 
EJECTMENT IN GREAT BRITAIN. 6(53 
 
 the said A. B. (the claimant) do recover possession of the land in 
 the said writ mentioned, except the said part, with the appurte- 
 nances, and that he have execution thereof forthwith ; and as to 
 the rest, let a jury cotne," etc. 
 
 By consent of the parties, and by leave of a judge, a special case 
 may be stated according to the practice in vogue at the time of the 
 passage of the act. But the claimants may, if no special case be 
 agreed upon, proceed to trial upon the issue, in the same manner 
 as in other actions; and the particulars of the claim and defense, 
 if any, or copies thei-eof, must be annexed to the record by the 
 claimants ; and the question at the trial, except in certain specified 
 cases, will be, whether the statement in the writ of the title of the 
 claimants is true or false, and, if true, then which of the claimants 
 is entitled, and whether to the whole or part, and if to part, then 
 to which part of the property in question ; and the entry of the 
 verdict may be made in the form contained in schedule A, to the 
 act annexed, marked number seventeen, or to the like effect, with 
 such modifications as may be necessary to meet the facts, that is to 
 say, the verdict may be in this form : 
 
 " Afterward on the day of A. D. before 
 
 and Justices of our Lady the Queen assigned to take the 
 
 assizes in and for the within county, comes the parties within 
 mentioned ; and a jury of the said county being sworn to try the 
 matters in question between the said parties; upon their oath say, 
 that A. B. (the claimant) within mentioned, on the day of 
 A. D. was, and still is, entitled to the possession of the land 
 within mentioned, as in the writ alleged : Therefore," etc. 
 
 In case the title of the claimant shall appear to have existed, as 
 alleged in the writ, and at the time of service thereof, but it shall 
 also appear to have expired before the time of trial, the claimant 
 may, notwithstanding, be entitled to a verdict according to the 
 fact that he was so entitled at the time of bringing the action and 
 serving the writ, and to a judgment for his cost of suit. The 
 court or a judge may, on the application of either party, order 
 that the trial shall take place in any county or place other than 
 that in which the venue is laid; and such order being suggested 
 in the record, the trial may be had accordingly. 
 
604: ZiAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 . If the defendant appears, and the claimant does not appear at the 
 trial, the claimant will be nonsuited ; and if the claimant appears 
 and the defendant does not appear, the claimant will be entitled to 
 recover without any proof of title. 
 
 The jury may find a special verdict, or either party may tender 
 a bill of exceptions. 
 
 Upon a finding for the claimant, judgment may be signed, and 
 execution issue for the recovery of the possession of the property, 
 or such part thereof as the jury shall find the claimant entitled 
 to, and for costs, within such time, not exceeding the fifth day in 
 term after the verdict, as the court or judge before whom the 
 cause is tried, shall order ; and if no such order be made, then on 
 the fifth day in term after the verdict, or within fourteen days 
 after such verdict, whichever shall first happen. Upon a finding 
 for the defendants, or any of them, judgment may bo signed, and 
 execution issue for costs against the claimants named in the writ, 
 M'ithin such time, not exceeding the fifth day in term after the 
 verdict, as the court or judge before whom the cause is tried, 
 shall order; and if no such order be made, then on the fifth day 
 in term after the verdict, or within fourteen days after such ver- 
 dict, wliichever shall first happen. Upon any judgment in eject- 
 ment for the recovery of possession and costs, there may be either 
 one writ or separate writs of execution for the recovery of posses- 
 sion, and for the costs, at the election of the claimant. 
 
 In case of such an action being brought by some one of 
 several persons entitled as joint-tenants, tenants in common, or 
 coparceners, any joint-tenant, tenant in common, or coparceners 
 in possession, may, at the time of the appearance, or within four- 
 teen days after, give notice in the same form as the notice of a 
 limitad defense, that he or she defends as such, and admits the 
 right of the claimant to an undivided share of the property 
 (stating what share), but denies any actual ouster of him from the 
 property, and may, within the same time, file an aifidavit stating 
 with reasonable certainty that he or she is such joint-tenant, tenant 
 in common, or coparceners, and the share of such property to 
 which he or she is entitled, and that he or she has not ousted the 
 claimant ; and such notice must be entered in the issue in the 
 same manner as the notice limiting the defense, and upon the 
 trial of such issue the additional question of whether an actual 
 ouster has taken place, must be tried. Upon the trial of such issue 
 
EJECTMENT IN BREAT BRITAIN. 605 
 
 as last aforesaid, if it shall be found that the defendant is joint- 
 tenant, tenant in common, or coparcener with the claimant, then 
 the question whether an actual ouster has taken place, must be 
 tried, and unless such actual ouster shall be proved the defendant 
 will be entitled to judgment for costs ; but if it shall be found 
 either that the defendant is not such joint-teqant, tenant in com- 
 mon, or coparcener, or that an actual ousfer has taken place, then 
 the claimant will be entitled to such judgment for the recovery 
 of possession and costs. 
 
 It is declared by the statute, that the death of the claimant or 
 defendant shall not cause the action to abate, but it may be con- 
 tinued in the way prescribed in the act. In case the right of the 
 deceased claimant shall survive to another claimant, a suggestion 
 may be made of the death, which suggestion is not traversable, 
 but will be subject to be set aside if untrue, and the action may 
 proceed at the suit of the surviving claimant ; and if such a sug- 
 gestion be made before the trial, then the claimant may have a 
 verdict and recover such judgment as aforesaid, upon it appearing 
 that he was entitled to bring the action either separately or jointly 
 with the deceased claimant. In case of the death before trial of 
 one of several claimants, whose right does not survive to another 
 or others of the claimants, where the legal representative of the 
 deceased claimant shall not become a party to the suit in the man- 
 ner prescribed, a suggestion may be made of the death, which 
 suggestion is not traversable, but may be set aside if untrue, and 
 the action may proceed at the suit of the surviving claimant for 
 such share of the property as he is entitled to, and costs. 
 
 Upon the death of one of several claimants after a verdict has 
 been rendered in favor of the claimants, provision is made for the 
 entry of judgment upon the verdict, and for an execution to be 
 issued for the possession of the entirety of the property and costs, 
 and very equitable proceedings are provided for in case of the 
 death of a sole claimant before trial, where the riglit of action 
 does not survive. So, also, ample provision is made in- cases where 
 the defendants in an ejectment die before or after a verdict, for 
 the action to proceed, or for judgment and execution, as the case 
 may be. 
 
 The eifect of a judgment in ejectment under this act, it is 
 declared, shall be the same as that of a judgment in the action 
 of ejectment heretofore used, and which is the same as the judg- 
 
606 LAW OF EJBCTMJEXT AND ADVERSE ENJOYMENT. 
 
 ment in an ejectment at common law. Error may be brought in 
 like manner as in other actions upon any judgment in ejectment, 
 after a special verdict found by the jury, or a bill of exceptions, 
 or by consent after a special case stated. (15 and 16 Vict. oh. 76, 
 §§ 168-208.) 
 
 The foregoing are substantially the provisions of the English 
 common law procedure act of 1852, in respect to the action of 
 ejectment, given in about the order in which they stand upon the 
 statute book. The act also provides for the action of ejectment as 
 between landlord and tenant, which has been stated in full in the 
 chapter in which that subject is particularly considered.- {Ante, 
 eh. 13.) 
 
 In case an action of ejectment, is brought by any mortgagor, his 
 heirs or assigns, for the recovery of the possession of any mort- 
 gaged premises, the act provides that the mortgagor, or the person 
 having the right to redeem the premises, may render the principal, 
 interest and costs of the suit in court, which will be deemed a full 
 satisfaction, and the court may thereupon compel the mortgagee 
 to reconvey the premises. (15 and 16 Yict. oh. 76, § 219.) 
 
 The common law procedure act was amended in 1854, so as to 
 allow parties to real actions to arbitrate their claims, and enter 
 judgment upon the award. (17 and 18 Yict. ch. 125, § 16.) 
 
 Some litigation has arisen under the practice in the action of 
 ejectment as at present regulated in England, and a brief reference 
 will be made to such cases as may by any means be of service in 
 the United States. It will be observed in tlie sequel that the pro- 
 visions of the English act are quite similar to the statutes of some 
 of the states regulating the action to recover real property therein. 
 
 Under the provisions of the coinmon law procedure act of Eng- 
 land, it is held, that two tenants in common may join in a writ of 
 ejectment, stating that some, or one of them, claim to be enti- 
 tled ; and the whole of the property to which they are entitled in 
 common maj' be recovered on such writ. {Ellis v. Ellis, 1 Ellis, 
 Blackburn & Ellis' E. 81. Same Case, 96 Eng. C. L. E. 81.) 
 Under the old practice, the declaration might have alleged separate 
 demises to John Doe by each tenant in common. {Doe v. Erring- 
 ton, 1 Adolph. & Ell. E. 750. Same Case, 28 Eng. C. L. E. 750.) 
 And it was suggested by Crompton, J., in Ellis v. Ellis, supra, 
 ' that the form of the writ in ejectment prescribed by the one hun- 
 dred and sixty-ninth section of the common law procedure act, 
 
EJECTMENT IN GREAT BRITAIN. 607 
 
 ■whereby " A, B aud C, some or one of them, claim to be " " enti- 
 tled," is equivalent to separate demises by each tenant in common, 
 and that, therefore, the practice is not in reality changed by the 
 act. It is provided, by a rule of court, that "no judgment in 
 ejectment for want of appearance or defense, whether limited or 
 otherwise, shall be signed without first filing an affidavit of the 
 service of the writ according to the common law procedure act, 
 1852, and a copy thereof." Under this rule it was contended that 
 the common aflidavit of service was necessary. The court of com- 
 mon bench questioned whether the affidavit, required by the rule, 
 of service of the writ of ejectment under the one hundred and 
 seventieth section of the common law procedure act, should show, 
 as under the old practice, that the nature and object of the service 
 were exjjlained to the party served. But it was held, that at best 
 such an omission was a mere irregularity, and was waived by a 
 subsequent attornment. {Edwards v. Griffith, 6 J. Scott's R. 397. 
 Same Case, 80 Eng. C. L. E..396.) 
 
 An action of ejectment was brought to recover the opera house, 
 by the lessor, on the ground that the tenant had committed a for- 
 feiture ; and application was made, under the common law pro- 
 cedure act, for leave to appear and defend the action by the 
 grantee, from the lessee, of a private box for a term of years ; 
 the applicant sweai-ing that he was "in possession of the box;" 
 the court of queen's bench held, that, on such application, it was 
 sufficient that a prima facie case of legal possession was shown ; 
 and granted the leave, without coming to any conclusion on the 
 efi'ect of the instrument under which the box was held. Applica- 
 tion was also made by a party who had obtained judgment on an 
 ejectment against the lessee, but had not been put in possession ; 
 and the court held, that he had no such possession as the statute 
 contemplated, and refused the leave. {Croft v. Lwnley, 4 Ellis & 
 Blackburn's E. 608. Same Case, 82 Eng. C. L. E. 608.) 
 
 It has been decided, that an equitable defense cannot be pleaded 
 in ejectment under the common law procedure act, as amended in 
 1854r, because there is now no plea in that form of action. Equit- 
 able grounds of defense arise so often in ejectment that one would 
 naturally have expected to find a separate and distinct provision 
 as to ejectments. The eighty-fourth section of the act provides, 
 that " any such matter which, if it arose before or during the time 
 of pleading, would be an answer to the action by way of plea, 
 
608 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 may, if it arise after the lapse of tlie period during which it could 
 be pleaded, be set up by way of audita querela f and the eighty- 
 fifth section provides, tiiat "the plaintiif may reply; in answer to 
 an}"^ plea of the defendant, facts which avoid such plea upon equita- 
 ble grounds ; provided, that such replication shall begin with the 
 words ' For replication on equitable grounds,' or words to the like 
 effect." Then, the right to plead equitable defense is qualified by 
 the eighty-sixth section : "Provided, always, that in case it shall 
 appear to the court, or any judge thereof, that any such equitable 
 plea or equitable replication cannot be dealt with by a court of 
 law so as to do justice between the parties, it shall be lawful for 
 such court or judge to order the same to be strilck out, on such 
 terms, as to costs or otherwise, as to such court or judge shall 
 seem reasonable." Jervis, C. J., said : " Ancient demesne would 
 not be pleadable now. So, an equitable defense, which requires 
 to be pleaded in a particular form, clearly cannot be available in 
 a form of action which admits of no pleading." Maule, J., said : 
 " The 15 and 16 Yictoria, chapter 76, puts an end to declarations 
 in ejectment. In sweeping away the declaration and notice, there 
 cannot be a doubt that it also sweeps away all pleadings. An 
 equitable plea may be disposed of by a judge by a summary order, 
 if he thinks it inconvenient that it should be allowed. * * * 
 In ejectment there is. no declaration ' to start from ; so there can be 
 no plea. There is, therefore, nothing in the record to enable ns to 
 decide. I do not think an ' equitable defense ' is available at all 
 in an action of ejectment." The court concurred in this view. 
 {Neave v. Avery, 7 J. Scott's E. 328. 8ame Case, 81 Eng. C. L. 
 R. 327.) This point of practice is very important, and hence the 
 space devoted to its consideration. 
 
 The courts have also decided, after thorough discussion and 
 mature deliberation, tliat the common law procedure act, as 
 amended in 1854, does not authorize the issuing of a writ of 
 injunction in an action of ejectment. Crowder, J., said: "1 
 an# of opinion that the whole language of the eighty-second 
 section, without referring to the interpretation clause, shows 
 that it was not meant to apply to actions of ejectment; and 
 the interpretation clause shows that * action ' is limited to per- 
 sonal actions," and all the judges argued, and concurred in the 
 opinion, that no injunction could be allowed in the action of eject- 
 
EJECTMENT IN GREAT BRITAIN. 609 
 
 mcnt as the law now stands. {Baylis v. Le Gros, 2 J. Scott's E. 
 K S. 316. Same Case, 89 Eng. C. L. E. 316.) 
 
 It has been held that interrogatories may be administered in an 
 action of ejectment, even though it may be brought to enforce a 
 forfeiture ; and if the party to whom the interrogatories are put 
 has objections to any of them, upon any legal ground, the same 
 may be stated to each particular question, after such party is 
 sworn. {Chester v. Worthy, 8 J. Scott's K. 410. Same Case, 84 
 Eng. C. L. R. 409. And vide Osborn v. The London Dock Com- 
 pany, 10 Exch. E. 698.) 
 
 Where the defendant in ejectment appears to defend for the 
 whole of the laud mentioned in the writ, and the plaintiff at the 
 trial proves his title to the possession of part only of the land, the 
 verdict is not to be entered in the general form for the plaintiff, 
 but for the part only of the land as to which he succeeds, accord- 
 ing to the form prescribed by section one hundred and eighty of 
 the common law procedure act of 1852. Crompton, J., said: 
 "Why should not the defendant be taken to have appeared to 
 defend for tlie whole, and also for each specific part of the prem- 
 ises? From Phythian v. White, 1 M. & W. 216, to Naherme v, 
 Gardiner, 8 E. & B. 161 (E. C. L. E. vol. 92), the courts have 
 always construed distributively all pleadings that would possibly 
 admit of such a construction ; and section seventy-five of the com- 
 mon law procedure act, 1852, now requires them to do so. An 
 appearance in ejectment is certainly not a pleading, but it is, under 
 the new practice, analagous to the plea of not guilty under the old, 
 which in Doe d Bowman v. Lewis, 13 M. & W. 241, was held to 
 be distributable." {Ahioah v. Wilshaw, 2 Ellis & Ellis' E. 633, 
 Same Case, 105 Eng. C. L. E. 631.) 
 
 The court of queen's bench has held that, in ejectment, as well 
 since the common law procedure act, 1852, as before, the court has 
 jurisdiction to order by rule the parties really conducting the 
 defense to pay the costs of the plaintiff, though those parties arc 
 strangers to the record, and claim no interest in the property 
 That is to say, it was so held by Lord Campbell, 0. J., and Wight- 
 man, J. ; while Erie, J., dissented, saying : " Here the parties are 
 strangers to the record, and I do not see on what principle we 
 have this summary juysdietion over them. * * * I am, there- 
 fore, of opinion that, if the plaintiffs are entitled to recover costs 
 from these parties, they must I'ecover them, not in this summary 
 11 
 
610 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 manner, but in the normal way by action." {nutchinson v. Green- 
 wood, 4 Ell. & Black. R. 324. Same Case, 82 Eng. C. L.E. 322.) 
 Under tlie two hundred and tenth section of the common law pro- 
 cedure act, 1852, which relates to the action of ejectment in land- 
 lord and tenant cases, it has been lield that a motion for leave to 
 sign judgment and issue execution may be made to the court, and 
 the order granted is absolute in the first instance. {Youensr. 
 Keen, 2 J. Scott's R. N. S. 784. Same Case, 89 Eng. C. L. R. 384.) 
 
 Prior to the passing of the common law procedure act, 1852, a 
 defendant, who had been in execution for the nominal damages and 
 costs in an action of ejectment for more than twelve successive 
 calendar months, was entitled by statute to be discliarged ; and 
 the question has recently been before the court of common bench, 
 whether this act has in any way altered tlie state of the matter; 
 and the decision of the court is that it does not. "Williams, J., 
 said : " 'Eo doubt it must have occurred to the legislature that 
 points like this might arise; and, therefore, to obviate inconve- 
 nience, the sweeping provision in section 107 was introduced, that 
 the eflect of the judgment in ejectment in its new form, shall he 
 the same as the former judgment. Before that statute, the efiect 
 of a judgment for the plaintiff in ejectment was to enable the 
 plaintiff to keep the defendant in execution only for twelve months ;" 
 and the court held that the effect of this provision is to reserve to 
 the defendant all tlie advantages which the law before allowed 
 him; and among others the right to claim his discharge under 
 the old statute. {Humphreys v. Franlcs, 3 J. Scott's R. N. S. 
 765. Same Case, 91 Eng. C. L. R, 764.) 
 
 The foregoing are all of the points settled by the courts under 
 the present English act, which it is thought necessary to note. 
 It would seem that most of the principles of the common law in 
 respect to the action of ejectment are still retained, and that the 
 object of the statute of 1852, and its amendments, is merely to 
 alter the vrocedure in the action. 
 
EJECTMENT IN NEW TOEK. 6X1 
 
 CHAPTER XXXYI. 
 
 THE ACTION TO EEOOTEE EEAL PEOPEETY IN THe'sETEEAL STATES 
 
 THE PEACTICE IN NEW YOEK. 
 
 The action of ejectment, in the state of New Tork, like all 
 other civil actions in the courts of record of the state, must be 
 commenced by the service of a summons. 
 
 Tiie summons must be subscribed by the plaintiff or his attorney, 
 and directed to the defendant, and must require him to answer the 
 complaint, and serve a copy of his answer on the person whose 
 name is subscribed to the summons, at a place within the state to 
 be therein specified, in which there is a post-ofiiee, within twenty 
 daj-s after the service of the summons, exclusive of the day of 
 service. And the summons must also contain a notice to the 
 effect, that, if the defendant shall fail to answer the complaint 
 •within twenty days after service of the summons, the plaintiff will 
 apply to the court for the relief demanded in the complaint. 
 (Code of Procedure, §§ 127, 128, 129.) 
 
 The names of the real claimants must be inserted as plaintiffs 
 in the summons, and also in the complaint, in the action of eject- 
 ment, and all the provisions of law concerning lessors of a plaintiff 
 are made to apply to such plaintiffs. 
 
 The use of fictitious names of plaintifis or defendants, and of 
 the names of any other than the real claimants and the real 
 defendants, and the statement of any lease or demise to the 
 plaintiff, and of an ejectment by a casual or nominal ejector, are 
 abolished. (2 Stat, at Large, 312, §§ 5, 6-.) 
 
 No person can recover in ejectment unless he has, at the time 
 the action is commenced, a valid, subsisting interest in the premi- 
 ses claimed, and a riglit to recover the same, or to recover the 
 possession thereof, or of some share, interest or portion thereof, to 
 be proved and established at the trial. 
 
 If the premises for which the action is brought are actually 
 occupied by any person, such actual occupant must be made de- 
 fendant in the action ; if they are not so occupied, the action 
 must be brought against some .person exercising acts of ownership 
 on the premises claimed, or claiming title thereto, or some interest 
 therein at the commeaeement of the action. (2 Stat, at Larges^ 
 
612 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 3/^ §§3, 4.) The first pleading in ejectment is called a declaration, in 
 the Eevised Statutes of the state, but by the Code it is named a 
 complaint ; and by the Code the general provisions of the Revised 
 Statutes concerning real property', are made to apply to actions 
 brought under the Code, according to the subject matter of the 
 action, and without regard to its form. (2 Stat, at Large, 312, § 5, 
 Code, §§ 11, 141, 455.) 
 
 An action for the recovery of real property, or of an estate or 
 interest therein, or for the determination, in any form, of such 
 right or interest, and for injuries to real property, must be tried 
 In the county in which the subject of the action or some part 
 thereof is situated, subject to the power of the court to change the 
 place of trial in the cases provided by statute. (Code, § 123.) And 
 the action of ejectment was also a local action by the Revised Stat- 
 utes, and was required to be tried in the county where the subject 
 of the action was situated. (2 Stat, at Large, 426 § 2.) 
 
 It was said by Mullin, J., sitting at special term, that, although 
 the Code has abolislied the forms of actions, and the action of eject- 
 ment eo nomine is unknown to the law of Ifew York, yet the right 
 to recover the same estates, i-ights and interests in lands, tenements 
 and hereditaments, remains and is enforced by actions as before, 
 and the action to be brought is still an action at law, as distinguished 
 from a suit in equity. He, therefore, very properly held, that the 
 clause of the Code above stated, by which actions for the recovery 
 of real property, or of any estate or interest therein, or for the 
 determination in any form of such right or interest, and for inju- 
 ries to real property, are to be tried within the county, is to be 
 construed as relating to actions in tlie nature of ejectment and 
 trespass, and others which were formerly causes of legal cognizance 
 solely. {HiMell v. SiUexj, 4 Abbott's Pr. R. N. S. 403.) 
 
 A copy of the complaint need not be served with the summons ; 
 but if it is not, the summons must state where the complaint is or 
 will be filed. (Code, § 130.) The practice in respect to the service 
 of the summons, for the appearance of the defendant, and procuring 
 the service of a copy of the complaint in the action of ejectment, 
 is the same as in other civil actions, and need not be explained 
 here. The complaint in the action of ej^ectment must contain the 
 substance of what is required by the Code to be contained in the 
 complaint in other civil actions. The provisions of the Revised 
 Statutes relating to the contents of the declaration in ejectment are 
 
EJECTMENT IN NEW YORK. 613 
 
 applicable to tlie contents of the complaint under the Code for the 
 recovery of real property. By those provisions, it is sufficient for 
 the plaintiff to aver in -his complaint, that on some day therein to 
 be specified, and which must be after his title accrued, he was 
 possessed of the premises in question, describing them with con- 
 venient certainty, designating the number of the lot or township, 
 if any, in which they shall be situated : if none, stating the names 
 of the last occupants of lands adjoining the same, if any; if there 
 be none, stating the natural boundaries, if any ; and if none, de- 
 scribing such premises by metes and bounds, or in some other way, 
 so that from such description possession of the premises claimed 
 may be delivered. 
 
 If the plaintiff claims any undivided share or interest in any 
 premises, he must state the same particularly in the complaint. 
 
 If the action be brought for the recovery of dower, the complaint 
 must state that the plaintiff was possessed of the one undivided 
 third part of the premises as her reasonable dower as widow of 
 her husband, naming him. In every other case the plaintiff must 
 state whether he claims in fee, or whether he claims for his own 
 life, or the life of anotlier, or for a term of years, specifying such 
 lives or the duration of such term ; and the complaint must allege 
 that the plaintiff, being so possessed of the premises in question, 
 that the defendant afterward, on some day to be stated, entered 
 into such premises, and that he unlawfully withholds from the 
 plaintiff the possession thereof, to his damage, any nominal sum 
 the plaintiff shall think proper to state. (2 Stat, at Large, 312, 
 313,§§7,,8,9, 10.) 
 
 Before suit can be brought by an individual to recover the pos- 
 session of lands conveyed by him during his infancj', he must 
 make an entry upon the lands and execute a second deed to a third 
 person, or do some other act of equal notoriety in disaffirmance of 
 the first deed, such as demanding possession, or giving notice of an 
 intention not to be bound by the first deed ; and the courts hold . 
 that, under the present system of pleading in the state of N^ew York, 
 this act of disaffirmance must be averred in the complaint, and is 
 necessary to be proved. {Voorhees v. Yoorhees, 24 Barb. R. 150.) 
 The Eevised Statutes contain a provision allowing the plaintiff 
 to insert in the declaration several counts, naming several parties 
 as plaintiffs jointly in one count, and separately in others ; but the 
 sopreme court has decided, that this provision relates merely to the 
 
614: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 remedy, and is therefore repealed by the Code, as being inconsistent 
 "with its provisions respecting the parties to actions, the form of 
 actions, and with tlie whole scope of the Code. The court held, 
 that those provisions of the Code are in conflict witli the theory 
 of separate counts in the name of separate plaintiffs, for the same 
 cause of action, as in the former action of ejectment, and of sepa- 
 rate counts in favor of the same plaintiff, for the same cause of 
 action, as in other actions. And, further, that the intent of section 
 four hundred and fifty-live of the Code was, that the change 
 made in the form of the remedy shoiild not affect any substantial 
 right nor change any provisions relating to the remedy that can 
 be adapted to and applied under the Code, in perfect consistency 
 therewith. {St. John v. Pierce, 22 Barb. E. 362.) This case in 
 Barbour, however, holds that all the general provisions in the 
 Revised Statutes relating to real estate, where no specific incon- 
 sistent pi'ovision is made in the Code on the same subject, remain 
 in force, and are to be applied and adapted to the actions under 
 the Code. But it is confidently affirmed, that the provisions in the 
 Code prescribing the manner of commencing and conducting suits 
 and of receiving and entering verdicts and perfecting judgments, 
 all imply that it was the purpose of the codifiers and of the legis- . 
 latnre to have but one form of commencing suits, one simple and 
 single remedy for legal and equitable causes of action. So far as 
 relates to the form of the remedy, the language of the Code is too 
 explicit to admit of any doubt upon this head ; and it seemed to a 
 majority of the court that this section of the Revised Statutes 
 relating to the parties to the action for the recovery of real prop- 
 erty, relates purely to the i-emedy, and is therefore repealed, as 
 inconsistent with the provisions of the Code in regard to the par- 
 ties to actions, to the form, of actions, and to the vihole scope of tlie 
 Code. The action of ejectment is not retained. Actions in regard 
 to real estate are provided for in the Code, and are to be com- 
 menced under it by summons and complaint, or by summons fol- 
 lowed by a complaint, and are to be proceeded in and conducted 
 in conformity therewith. Smith, J., who delivered the opinion of 
 the court, observed : " The action of ejectment was anomalous 
 before the Code, but I think the codifiers did not intend to have 
 any such anomaly remain. They clearly intended to have one 
 uniform system of practice and pleading and proceeding in all 
 civil actions, and it would be in utter conflict, in my opinion, with 
 
EJECTMENT IN NEW YORK. B15 
 
 tlie whole principle, theory and policy of the Code to allow a variety 
 of counts in the form presented in the complaint in this action. But 
 such a mode of declaring is entirely unnecessary. The codifiers in- 
 tended to allow great latitude in regard to paities. They say : ' We 
 have intended to leave suitors very much at liberty to choose whom 
 to make defendants and whom to join as plaintiff. No person can 
 be affected by a j'udgraent but a party, or one who claims under 
 him. This rule will make the plaintiff bring in all the parties 
 whom he wishes to affect. The judgment, as we have provided 
 by section one hundred and sixty-one, can be given for or against 
 any one or more of the plaintiffs or defendants. This will save the 
 plaintiff from the hazard now encountered in bringing in too many 
 parties, except that of paying costs.' * * * A discreet exercise 
 of the powers of the court to make amendments, to disregard 
 variances, and decide upon and give effect to the rights of the 
 parties as disclosed on the trial of causes, and without regarding 
 too strictly the mere consideration of form, will best carry out the 
 object of the Code and further the ends of justice. In this view 
 of the duty of the court in respect to actions like the present, 
 plaintiffs can suffer no wrong for the want of different counts in 
 their complaints in the names of different plaintiffs." {St. John 
 V. Fierce, 23 Barb. R. 369-371.) 
 
 It was intended by the Code to retain substantially the con- 
 venient mode of pleading' in the action to recover the possession 
 of lands, as prescribed by the Revised Statutes. ( Warner v. Ifel- 
 ligar, 12 How. Pr. R. 402.) 
 
 Under the Revised Statutes, ejectment for premises not actually 
 occupied might be brought against one claiming title at the com- 
 mencement of the suit, though his claim had been manifested h/ 
 words merely; and the same rule prevails under the Code. But 
 an idle declaration of a party that he owns the premises, not 
 amounting to a serious claim of title, will not justify the action 
 against a party out of possession. Under all the changes of prac- 
 tice, and the purposes to which the action of ejectment is applied 
 in the State of New York, it has been permitted to be brought 
 only against some person actually in possession of the premises 
 claimed, or who is exercising acts of ownership over the same, and 
 claiming title tliereto. {Bangor v. Empie, 5 Hill's R. 48. Red- 
 field V. The Utica and Syracuse Railroad Company, 25 Barb. R. 
 54. Child V. Chappell, 9 N. Y". R. 246, 251.) 
 
616 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 In ejeotment, a plaintiff must, in liis complaint, describe truly 
 the premises claimed, but is not bound to set fortli the nature of 
 the estate, nor' the quantity of the interest claimed by him ; at 
 least it was so held by the old supreme court of the state of New 
 ITork, in a case under the Kevised Statutes, and the practice in 
 this respect is the same under the Code as under the Eevised 
 Statutes. In the action it is sufficient to aver in the complaint 
 that the plaintiff has lawful title, for example, as the owner in fee 
 simple, to the premises in question, describing tHem, that the 
 defendant is in possession of said premises, and imlawfully with- 
 holds possession thereof from him. That is to say, it is not neces- 
 sary under the Code, and it was not under the Revised Statutes, 
 to state the requisite facts to show the plaintiff had real title; or 
 any other facts to sho^v that the plaintiff is entitled to the posses- 
 sion of the land. The allegation of title, being of something 
 which the plaintiff would be bound to prove on the trial, in order 
 to sustain his action, relates to the subject matter of the action, and. 
 the provision of the Revised Statutes as to that is still applicable. 
 When a complaint alleged that W. J. S. died seised of real estate, 
 leaving no child capable of inheriting, and that the land there- 
 upon descended to F. S., as sole heir at law, etc., the court held that 
 this must be regarded as equivalent to an allegation that F. S. was 
 the heir and only heir at law of "W. J. 8., and in the same case 
 the court decided that where a complaint in ejectment described 
 the premises as about fifty acres in the southern part of a lot, 
 which was fully and perfectly described, it was a sufficient descrip- 
 tion ; but that if necessary the complaint could be amended by 
 striking out the word " about," when all ground of objection in 
 respect to the description would be removed. (St. John v. JVorth- 
 rup, 23 Barb. R. 25.) 
 
 Although the averments of prior possession in the plaintiff, and 
 in effect of ejectment provided by the Revised Statutes, should be 
 made in the declaration, it was not necessary to prove them, and 
 the plaintiff might recover although he had never been in the 
 occupation of the land. Because, under the express provisions of 
 the Eevised Statutes, a party having the present right of possession 
 might recover, although he had never been in the actual occu- 
 pancy, and of course had never been ejected. These averments 
 of prior. possession, and in effect of removal, were, therefore, 
 m&T:&\y formal — and mere formalities, especially falsehoods, are 
 
EJECTMENT IN NEW YORK. 617 
 
 supposed to be abolished by the Code. {Ensign v. Sherman, 14 
 How. Pr. K. 439. Sanders v. Zeavy, 16 ib. 308. Warner v, 
 NeUigar, 12 ib. 402. Walter v. Lochwood, 23 Barb. 11. 228. 
 Garner v. The Manhattan Building Association, 6 Dner's R. 
 600. Harrison v. Stevens, 12 Wend. E. 170. But t)ic7e Lawrence v. 
 TF;-i^A<, 2 Duer's E. 673. Ensign v. Sherman, 13 How. Pr. E. 35.) 
 As before suggested, when premises are unoccupied, parties 
 claiming title thereto, or some interest therein, may be named as 
 defendants, in an action oi ejectment ; or what is equivalent in the 
 action under the Code, to recover lands ; and such parties are not 
 permitted to complain that others should have been made defend- 
 ants instead of themselves, if, when applied to on the subject, tiiey 
 omitted to set the plaintiff right. It seems that sometimes the 
 plaintiff in ejectment has an election as to defendants. For 
 example, when a party really claims to own the premises in dis- 
 pute, and has contracted to sell the same to other parties, who are 
 exercising acts of ownersliip over the premises, which premises are 
 unoccupied, the plaintiff has an election to make the former or 
 the latter parties defendants in the action to recover the same. 
 (Edwards v. Farmers' Fire Insurance and Loan Company, 21 
 "Wend. E. 467. Vide Cooh v. Eider, 16 Pick. E. 186. Coojter v 
 Smith, 9 Serg. & Eawle's E. 26.) 
 
 Under the provisions of the statutes of the state, a widow's 
 action of ejectment for dower must be brought against the actual 
 occupant of the land of which she is dowerable, and not as in the 
 former action of dower against the tenant of the freehold. And 
 the action will lie against a tenant who has an estate or interest 
 less than a freehold, and before dower has been assigned or ad- 
 measured. (Ellicott V. Mosier, 11 Barb. E. 574. Saine Case, 7 
 N. Y. E. 281. But vide Townsend v. Townsend, 2 Sandf. E. 711.) 
 In an action to recover dower, before admeasurement, of real 
 property aliened by the husband, the plaintiff cannot recover 
 costs unless it appear that the dower was demanded before the 
 commencement of the action, and was refused. (Code, § 307.) 
 
 A defendant in ejectment, or in the action for the recovery of real 
 estate in New York, may, at any time before pleading, apply to 
 the court, or to any judge thereof in vacation, to compel the 
 attorney for the plaintiff" to produce to such court or officer his 
 authority for commencing the action in the name of the plaintiff 
 therein. Such application must be accompanied by an affidavit of 
 78 ' 
 
618 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the defendant, that he has not been served with proof in any way, 
 of the authority of the attorney to use tlie names of the plaintiffs 
 stated in the summons and complaint. Upon such application the 
 court or oflBcer must grant an order requiring the production of 
 such authority, and must stay all proceedings in the action until 
 the same be produced. (2 Stat, at Large, 314, §§ 17, 18, 19.) 
 
 It would seem that any officer having the authority to grant tht 
 same orders that the justices of the supreme court have at cham- 
 bers, may make an order compelling the production of a warrant 
 ofattmmcy, in an action of ejectment. {Harris v. Safford, 10 Wend. 
 E. 568.) 
 
 An agent of a person absent from the state, having power to see 
 to his property and business in the state, and also to pay for and 
 take a deed of, and take and hold possession of, and carry on and 
 work a piece of land for his principal, has no power to give author- 
 ity to an attorney to commence a suit to recover snch land. But 
 an instrument, executed by one of two joint owners of the land, 
 for and in the names of himself and his co-tenant (they being the 
 plaintiffs in the suit), recognizing the authority of the attorney to 
 commence the suit, and requesting him to continue it, the plaintiff 
 executing the instrument, having been verbally directed and author- 
 ized by his absent co-plaintiff to do whatever was necessary in regard 
 to the prosecution of the suit, has been held to be a sufficient recog- 
 nition. {Howard v. Howard, 11 How. Pr. E.. 80.) 
 
 The statute provides that any written request of the plaintiff or 
 his agent, to commence such action, or any written recognition of 
 the authority of the attorney to commence the same, duly proved 
 by the affidavit of such attorney or other competent witness, shall 
 be sufficient presumptive evidence of such authority. And if it is 
 made to appear, that, previous to such application by any defend' 
 ant, he has been served with a copy of the affidavit of the plaintiff's 
 attorney, showing his authority to bring such action, such applica- 
 tion will be dismissed, and the defendant will be liable for the costs 
 of resisting the application ; the payment of which may be com- 
 pelled hy fieri facias against personal property, as in other cases, 
 founded upon the order of the court. (2 Stat, at Large, 314, §§ 20, 
 21 ; Laws of 184T, ch. 390, §§2, 3.) The defendant may answer 
 the plaintiff's complaint, by a general or specific denial of each 
 material allegation therein contained, controverted by him, or of 
 any knowledge or information thereof sufficient to form a belief. 
 
EJECTMENT IN NEW YORK. 619 
 
 His answer may also contain a statement of any new matter consti- 
 tuting a defense or countei'-claim, in ordinary and concise language, 
 witliout repetition. (Code, § 148.) The ordinary principles of 
 }' leadings in other actions will apply to the action of ejectment. 
 
 Some early authorities under the Code hold to the doctrine that 
 in the action to recover the possession of land, foimded on a legal 
 title in the plaintiff, an equitable right in the defendant to a con- 
 veyance, is not a defense, any more than it was previously to the 
 Code. {Crary v. Goodman, 9 Barb. R. 657. Cochran v. TTe&J, 
 4 Sand. E. 653. Uill v. McCarthy, 3 Code E. 43.) But as the 
 practice now stands, there is no doubt but the action of ejectment 
 may be met by an equitable title of the defendant, and a claim for 
 a conveyance of the legal estate ; yet it seems, that, in order to de- 
 feat a recovery, the defendant must become an actor in respect to 
 his claim ; and that his answer must contain all the elements of a 
 bill for a specific performance ; and he must ask and obtain affirma- 
 tive relief {Dewey v. Soag, 15 Barb. R. 365), or any good and valid 
 equitable defense may be interposed to defeat the action. {Crary 
 V. Goodman, 12 N. Y. R. 266.) 
 
 An answer in an action to recover the possession of real estate, 
 which denies that the defendant is in possession of the premises 
 described in the complaint, or that there has been any demand of 
 the possession by the plaintiff, or any unlawful withholding thereof, 
 does not put in issue the title of the plaintiff, or raise the question 
 of adverse possession. {Ford v. Sampson, 30 Barb. R. 183. CoV' 
 win v. Corwin, 9 ib. 219.) 
 
 "Where the complaint in an action of ejectment averred that 
 the defeftdant was in possession of the premises claimed, and the 
 defendant's answer admitted it, but the plaintiff's reply denied 
 that the defendant was in possession, the court held that the 
 plaintiff was bound to prove the defendant in possession on the 
 trial. {People v. Van Rensselaer, 9 N. T. R. 291.) 
 
 It is not necessary in the state of New York for the plaintiff in 
 ejectment to prove an actual entry under title, nor the actual 
 receipt of any profits of the premises demanded ; but it is made 
 sufficient for him to show a right to the possession of sucli prem- 
 ises at the time of the commencement of the suit, as heir, devisee, 
 purchaser, or otherwise. Neither is it necessary on the trial for 
 the defendant to confess, nor for the plaintiff to prove lease, entry 
 and ouster, or either of them ; except if the action is brought by 
 
620 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 one or more tenants in common, or joint-tenants, against their 
 co-tenants, the plaintiff, in addition to all other evidence which he 
 may be bound to give, is required to prove on the trial of the cause 
 that the defendant actually ousted such plaintiff, or did some other 
 act amounting to a total denial of his right as such co-tenant. 
 (2 Stat, at Large, 315, §§25, 26, 27.) Under this statute the 
 plaintiff in ejectment is bound to show title in himself at the time 
 of the commencement of the action. If the title upon which he 
 relies is founded upon the foreclosure of a mortgage, by advertise- 
 ment under the statute, the courts hold that proof of a regular and 
 complete foreclosure is essential to the validity of that title. (Za-y- 
 man v. Whiting, 20 Barb. R. 559. And vide Clarke v. Miller, 
 18 ib. 269. 77^6 People v. Livingston, 8 ib. 253.) But to recover 
 in ejectment, under a purchase of the premises at a sheriff's sale 
 on a judgment against the defendant, it is sufficient for the plaintiff 
 to show the defendant in possession at the time of the recovery of 
 the judgment against him, and a continued possession in him from 
 that time to the time of the commencement of the suit, and that 
 the plaintiff acquired the title of the defendant under the sheriff's 
 sale, and while under a naked contract of purchase, which is silent 
 on the subject of possession, the purchaser acquires no right to the 
 possession, and no right of entry will follow from it. Still, if the 
 purchaser, in such a case, enters in pursuance of a parol license 
 from the vendor, the possession thus acquired is an interest in the 
 land distinct from the interest acquired under the contract, and is 
 subject to sale o'h an execution ; and after the sale is matured, and 
 the purchaser receives the sheriff's deed for the premises, he has a 
 title on which he may recover in ejectment. {Kellogg v. 'Kellogg, 
 6 Barb. R. 116.) 
 
 Where the plaintiff in ejectment shows the defendant in pos- 
 session of the premises claimed at the time of the commencement 
 of the action, the presumption will be, in the absence of evidence 
 to the contrary, that he entered and held in hostility to the 
 plaintiff, and not in subordination to his right, and accordingly, 
 in order to put the plaintiff to proof of an ouster, in such case, 
 the defendant must show affirmatively that either he, or one under 
 whom he claims, is a joint-tenant or tenant in common with the 
 plaintiff. {Sharp v. Ingraham, 4 Hill's R. 116.) 
 
 And by the common law, as well as under the statutes of New 
 York, a tenant in common, in order to maintain ejectment against 
 
EJECTMENT IN NEW YORK. 621 
 
 his co-tenant, must show an actual ouster, or some act amounting 
 to a total denial of his right. The denial must he such as to 
 amount to a disseisin of the co-tenant, or estahlish an adverse pos- 
 session on the part of the wrongdoer. Accordingly, where the 
 defendant, who was a tenant in common with the plaintiff of the 
 title," admitted himself to be in possession, claiming the premises 
 in question as owner in fee thereof 'ondiev a quitclaim deed," from 
 a grantor who had owned an undivided share, and which deed pur- 
 ported to remise, lease and forever quitclaim unto the defendant, 
 his heirs and assigns forever, the same premises, describing them 
 by metes and bounds, the court of appeals held, that the defendant 
 was not guilty of any ouster or denial of his co-tenant's riglit, so 
 as to subject him to an action of ejectment. {Edwards v. Bishop, 
 4 N. Y. E. 61.) 
 
 In a ease in tlie supreme court of the state, where the defendant 
 held under a title derived from five of the heirs of one Fish, and 
 claimed the whole premises as his own, had offered to sell them, 
 and being told that all the heirs had not signed his deed, he said 
 they had received their share of the consideration, and he thought 
 equity would compel them to sign it, tlie court held this to amount 
 to a denial of the right of the plaintiffs, who, as heirs of Fish, were 
 entitled to four-ninths of the property. {Valentine v. Northrop, 
 12 Wend. E. 495.) 
 
 "When, in an action of ejectment, the defendant claims title and 
 possession under and by virtue of a deed executed to him as 
 receiver by a corporation, in pursuance of an order of court, the 
 deed, on production, will suffice to show that the defendant is in 
 possession of the premises, and claiming title thereto, under the 
 corporation. The proceedings under which the receiver was 
 appointed are unimportant for that purpose, and need not be 
 produced. And it seems that where the premises in dispute are 
 actually occupied, no other person should be made defendant in 
 the action of ejectment to recover them except the party in the 
 actual and exclusive possession thereof. {Schuyler v. Marsh, 
 37 Barb. E. 350. But vide Waldorph v. Bortle, 4 How. Pr. 
 E. 358.) 
 
 Wliere, in an action of ejectment against four defendants to 
 recover possession of land, the complainant stated that one of 
 them unjustly claimed title to the premises, and the others were 
 in possession under him, and that the defendants unjustly with- 
 
622 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 held tlie possession from the plaintiff, the answer merely denied 
 the allegation as to withholding possession, and alleged that the 
 one was the owner of and entitled to the premises ; on the trial 
 it was proved by the defendants, subject to objection, that they 
 occnpied severally distinct parcels of the premises ; the court 
 held, that under the pleadings the plaintiff was entitled to recover 
 against all the defendants. And it was further decided, that, if 
 there was an improper joinder of parties, the objection should 
 have been raised by demurrer or answer. {Fosgate v. The 
 HerJcimer Manufacturing and Hydraulic Company, 12 N. Y. 
 E. 580.) 
 
 In a late and well considered case in the supreme court of the 
 state, the action of ejectment was brought against the party in the 
 actual possession of the premises in dispute, together with another 
 person who, it was alleged, claimed some right, title or interest in 
 the premises, and had received the rents and profits thereof for a 
 long time before and up to the time of the commencement of tlie 
 action ; and the plaintiff insisted that section one hundred and 
 eighteen of the Code authorizes a landlord to be joined with the 
 tenant in possession in actions to recover the possession of real 
 property, as " a necessary party to a complete determination or 
 settlement of the question involved." But the eonrt took a dif- 
 ferent view, and held, that in ejectment the landlord is not a neces- 
 sary party, and cannot be joined as defendant with the tenant in 
 possession. {Pullen v. Reynolds, 22 How. Pr. E. 353.) 
 
 In the course of the able opinion of the court in the ease in the 
 23 Howard, it was laid down, principally upon authority, that the 
 action of ejectment is a possessory action, and does not settle 
 the right, except as to the possession. It determines no right of 
 property, and therefore the landlord is held not to be a necessary 
 party. {yideVan JBuren v. Cockhurn, 14 Barb. E. 118.) As sec- 
 tion one hundred and eighteen of the Code only authorizes those 
 to be made parties who are necessary to a determination of the 
 question involved, it follows that the joinder of the landlord with 
 the tenant is unauthorized by that section. And it was affirmed, 
 that there is very good authority for holding that this section only 
 applies to equitable actions, such as would have been formerly the 
 subject of a suit in chancery, and that it was only intended to 
 retain, as applicable to that class of actions, a rule which had been 
 necessary, but which cannot well be applied to common law actions 
 
EJECTMENT IN NEW YORK. 623 
 
 or forms of common law procedure and trial. This doctrine was 
 laid down in the court of appeals by Selden, J., and Judges Pratt, 
 Strong and Denio concurred. ( Voorhies v. Childs, 17 IST. Y. E. 354.) 
 And the same doctrine had been previously enunciated in the 
 supreme court by Cady, J., and concurred in by Judges "Willard, 
 Hand and C. L. Allen. ( Van Home v. Everson, 13 Barb. E. 526.) 
 By the Eevised Statutes, in actions against a tenant to recover the 
 land held by him, or the possession of such land, the landlord of 
 the tenant, and any person having any privity of estate or interest 
 with such tenant or landlord in the premises, may be made defend- 
 ant with the tenant, or appear without such tenant, at his election. 
 But he could not be made a party except at his election and on 
 Lis own application. {Shaw v. McGraw, 12 Wend. E. 558.) The 
 sarife rule will hold good under the Code. {Godfrey v. Townsend, 
 8 How. Pr. E. 398.) The character and form of the action of 
 ejectment has not been essentially changed by the Code. It is 
 still a possessory action, to be brought against the actual occupant, 
 ■with liberty to any other person having an interest to apply to be 
 made a party ; but it is declared, that under no circumstances can 
 a person out of possession be made a party without his consent. 
 
 In a case in the court of appeals, where, at the expiration of a 
 lease of land, a building erected thereon by the lessor was wrong- 
 fully continued upon the lot b}' those claiming under him, eject- 
 ment being brought for the lot alone, by metes and bounds, against 
 parties occupying separately the different stories of the building, 
 it was held, that the action would lie against all the defendants as 
 being joint-trespassers on the land, using it to uphold the building, 
 and that the plaintiff was not bound to elect against which one 
 she would proceed, as provided by 2 Eevised Statutes, 307, sec- 
 tion 30. {Pearce v. Ferris' Executors, 10 IS". Y. E. 280. And vide 
 Pearce v. Colden, 8 Barb. E. 522.) 
 
 As has been stated before, if there be an actual occupant, he 
 must be named as defendant in ejectment. If the premises are 
 actually occupied, it is immaterial who claims to be the owner. 
 A claim or pretense set up by other persons in conversation will 
 not, in such a case, justify an action against the latter. But if 
 there be no actual occupant, ejectment may be brought against a 
 person claiming title. There must, however, in that case, be a 
 serious intentional claim of ownership. An idle declaration that 
 the party owns the premises will not be sufBcient. A church 
 
624 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 edifice, actually used and occupied by a religious society for tie 
 purpose of religious worship, and not used in any other way or 
 by any particular individual, will be deemed to be in the actual 
 occupancy of the corporation ; and ejectment must be brought 
 against the corporation. It will not lie against the trustees or 
 other officers of the church. Trustees of a church, quasi trustees, 
 can have only constructive possession of the church edifice, by 
 reason of having the right of possession. {Lucas v. Johnson, 
 8 Barb. K. 244. PeopU v. Bunkle, 8 Johns. E. 363.) 
 
 Ejectment for entering and unlawfully withholding the posses- 
 sion of land, will not lie against a person who is not in possession 
 himself, or by his servant, though he has given a lease of it, and 
 it is occupied by the lessee. (The G/iamplain dk St. Lawrence 
 Ltailroad Company v. Valentine, 19 Barb. K. 484.) * 
 
 So also a party in possession of premises can abandon the same 
 at any time; and whether the owner accept such abandonment or 
 not, if the party is out of possession by his own act at the time an 
 ejectment suit is commenced against him, the plaintiff cannot 
 recover. {Allen v. Dunlap, 42 Barb. K. 585.) 
 
 In an action under the Code to recover the possession of real 
 estate, it is only necessary for the plaintiff to allege in his com- 
 plaint, tiiat he is seised or possessed of some certain estate or 
 interest in the premises, and entitled to the possession of the same ; 
 and that the defendant unlawfully withholds from him the posses- 
 sion thereof. And when it appears from the complaint, in an 
 action against a municipal corporation and others, to recover the 
 possession of real estate, that the premises are actually occupied by 
 the tenants of the corporation, the complaint shows that the plaint- 
 iffs have no right to make the corporation a defendant, the rule of 
 the Revised Statutes, that in such a case the tenants in the actual 
 occupation shall alone be made defendants, has not been altered by 
 the Code. {The People v. The Mayor, etc., of the City of New 
 York, 28 Barb. ,R. 240. Tompkins v. White, 8 How. Pr. R. 520.) 
 
 Trespass and ejectment in respect to the same identical prem- 
 ises, cannot be united in the same complaint. If a complaint in 
 an action for the recovery of the possession of real estate, omits 
 to describe any premises whatever, there is nothing of which a 
 bill of particulars, under section 158 of the Code, can be given, 
 and nothing to be made definite and certain by a motion under 
 Bection 160. In such a case the proper course is to dismiss the 
 
EJECTMENT Ilf NEW YOSK. 625 
 
 complaint, with leave to the plaintiff to amend on terms. {Budd 
 V. Bingham, 18 Barb. E. 49-1.) 
 
 Tlie statute provides that if the action of ejectiBent is brought 
 against several defendants, and a joint possession of all be proved, 
 the plaintiff shall bo entitled to a verdict against all, whether they 
 shall have pleaded separately or jointly. And when the action is 
 against several defendants, if it appear on the trial that any of 
 them occupy distinct parcels in severalty, or jointly, and that other 
 defendants possess other parcels in severalty, or jointly, the plaintiff 
 shall elect at the trial, against which he will proceed ; which 
 election shall be made before the testimony in the cause shall be 
 deemed closed; and a verdict shall thereupon be rendered for the 
 defendants not proceeded against. (2 Stat, at Large, 315, 316, 
 §§ 28, 29.) Those provisions of the Revised Statutes are still in 
 force ; not having been repealed by the Code. And accordingly 
 it has been held that where a lot has on it a house occupied by 
 several tenants, who rent different apartments, they are joint 
 occupants of the land, and may be proceeded against jointly in 
 an action of ejectment. [Pearce v. Golden, 8 Barb. R. 522.) And 
 again, when it appears, on the trial of an ejectment suit, that the 
 individual defendants were in possession of separate rooms in a 
 dwelling-house on the premises, and of separate parcels of land as 
 tenants of a co-defendant, the plaintiff is bound to elect against 
 which of the defendants he will proceed ; and a verdict must be 
 rendered in favor of the other defendants. A general verdict in 
 such a case, it seems, cannot be sustained. {Fosgate v. The 
 Herkimer Manufacturing and Hydraulic Company, 9 Barb. E. 
 287.) And in a late case in the supreme court, where the action 
 was against two, to recover the possession of one undivided tenth 
 part of one hundred acres of land, the defendant put in separate 
 answers, and did not set up in his answer that he occupied and 
 was in possession of only a portion of the land ; that his occupa- 
 tion and possession were exclusive and in severalty ; and that the 
 other defendant was in the exclusive occupation and possession of 
 the remainder. The answer of the other defendant contained the 
 necessary allegations to entitle him to raise the objection that the 
 action could not be maintained against the defendants jointly, 
 and that the plaintiff was bound to elect, at the trial, against which 
 he would proceed. The referee found that the plaintiff had title in 
 fee to one undivided tenth part of one hundred acres of land, 
 79 
 
G26 LAW OF EJECTMENT AKD ADVERSE ENJOYMENT. 
 
 described in the complaint ; but that the defendants were not in 
 the joint possession or occupancy of any portion of the land ; tliat 
 by a partition between themselves, one of them took twenty acres 
 and the other eighty acres thereof, and each entered into the ex- 
 clusive possession of his share ; the court held that the defendant 
 ■ first mentioned had, by his answer, waived the objection that tlie 
 plaintift" coidd not maintain the action against him and the other 
 defendant jointly, and that the plaintiff was bound to elect at the 
 trial, against which lie would proceed ; that the defendants could 
 not demur to the complaint on the ground that several causes of 
 action had been improperly united, for tlie reason that it did not 
 appear on the face that several causes of action had been so 
 united ; that the plaintifi' was entitled to recover against the other 
 defendant, and that the referee erred in giving judgment in his 
 favor ; that there was nothing in the case to prevent the plaintiff 
 from electing to proceed against either defendants, and that ho 
 might do so on a retrial of the action ; and finally that section 29 
 of the Revised Statutes, before referred to, was not repealed by 
 the Code of procedure, and is retained by section 455 of the Code. 
 (Billaye v. Wilson, 43 Barb. E. 201.) So, also, in an ejectment 
 before the Code, against several defendants, it was held that if it 
 appeared that tiie defendants occupied distinct parcels in severalty, 
 the plaintiff might elect to take a verdict against one of the 
 defendants; whereupon a verdict would be rendered in favor of 
 all the other defendants. {Rogers v. Arthur, 21 "Wend. E. 598.) 
 By the Eevised Statutes it is enacted, that if it be shown on the 
 trial, that all the plaintiffs have a right to recover the possession 
 of the premises, the verdict in that respect must be for the plaintiffs 
 generally ; if it appear that one or more of the plaintiffs have a 
 right to the possession of the premises, and that one or more have 
 not such right, the verdict must specify for which plaintiff" the 
 jury find, and as to which plaintiff" they find for the defendant; 
 if the verdict be for any plaintiff, and there be several defendants, 
 the verdict must be rendered against such of them as were in 
 possession of the premises, or as claimed title thereto at the com- 
 mencement of the action ; if the verdict be for all the premises 
 claimed in the declaration, it must, in that respect, be for such 
 premises generally ; if the verdict be for a part of the premises 
 described in the declaration, the verdict must particularly specify 
 Buch part, as the same shall have been proved, with the same 
 
EJECTMENT IN NEW YORK. 627 
 
 certainty as is required in the declaration, in the description of the 
 premises claimed; if the verdict be for an undivided sliare or in- 
 terest in the premises claimed, it must specify such share or 
 interest ; and if for an undivided share in a part of the premises 
 claimed, it must specify such share, and must describe such part 
 of the premises, as before required. Tlie seventh subdivision of 
 the same section of the statute, requires that the verdict shall also 
 specify the estate which shall have been established on the trial, 
 by the plaintiff in whose favor it sliall be rendered, wlietlier such 
 estate be in fee for his own life, or for the life of another, stating 
 such lives, or whetlier it be a term for years, and specifying the 
 duration of such term. (2 Stat, at Large, 316, § 30.) By tlie Code, 
 in the action to recover specific real property, the jury, in their 
 discretion, may render a general or special verdict; and judgment 
 may be given for or against one or more of , several plaintiffs, and 
 for or against one or more of several defendants. (Code, §§ 261, 274.) 
 
 It has been said in one case, at least, that the provisions of the 
 Kevised Statutes as to the form of the verdict in ejectment must 
 be considered as modified by section 261 of tlie Code. But it was 
 held in the same case, that if the plaintiffs collectively in such 
 action are entitled to the whole of the property claimed, then a 
 general verdict for the recovery of the whole property would be 
 sufficient. If only a moiety belonged to them, collectively, a 
 general verdict for such moiety would be proper. ( Wood v. Stan- 
 iels, 3 Code E. 152.) 
 
 But there is no doubt but that under the sections of the Code 
 above referred to, some of the plaintiffs in the action of ejectment 
 may recover, according as the title may appear at the trial, while 
 the defendant may have judgment against the rest ; or tlie plaintiffs 
 in the action may have judgment against any or all of the defend- 
 ants, as the proof may show to be proper ; but probably only one 
 judgment will be allowed in favor of the plaintiffs in the same 
 case. The court can render judgment according to the right of 
 the case, as it appears at the circuit, and can amend the pleadings 
 and dismiss the complaint as to some of the plaintiffs or defend- 
 ant, so as to do substantial justice, as the law now stands. ( Vide 
 St. John v. Pierce, 22 Barb. E. 362.) 
 
 The Eevised Statutes provide that, if the right or title of a 
 plaintiff in ejectment expire after tlie commencement of the suit, 
 but before trial, the verdict shall be returned according to the 
 
628 • LAW OF EJECTMENT AKD ADVERSE ENJOYMENT. 
 
 fact, and judgment shall be entered that he recover his damages 
 by reason of the withholding of the premises by the defendant to 
 be assessed; and that, as to the premises claimed, the defendant 
 go thereof witliout day. (2 Stat, at Large, 316, § 31.) This pro- 
 vision of the statute, not being inconsistent with any of the provi- 
 sions of the Code, is undoubtedly still in force, and applicable to 
 actions for the recovery of real property brought under the Code. 
 
 It has been held, that, where in an action of ejectment, after 
 issue joined, the defendant at the circuit pleaded in bar jpuia 
 darrein continuance, that the plaintiff had entered upon and taken 
 exclusive possession of the lands and premises described in the 
 declaration,- and still retained the same, this constituted no bar 
 to the further maintenance of the suit, and the plea was adjudged 
 bad on demurrer; and it was also held that an objection to the 
 form of such a plea was not available on general demurrer. {Tyler 
 V. Canaday, 2 Barb. E. 160.) 
 
 It is further provided by the Revised Statutes, that the action 
 of ejectment shall not be abated by the death of any plaintiff or 
 of one of several defendants, after issue and before verdict or judg- 
 ment ; but the same proceedings may be had as in other actions, 
 to substitute the names of those who may succeed to the title of 
 the plaintiff so dying, in which case the issue shall be tried as 
 between the original parties ; and in case of the death of a defend- 
 ant the cause shall proceed against the other defendants. (2 Stat, 
 at Large, 317, § 32.) 
 
 This provision of the statute is probably superseded by the Code. 
 In respect to actions in general, the Code provides that no action 
 shall abate by the death, marriage, or other disability of a party, 
 or by the transfer of any interest therein, if the cause of action 
 survive or continue. In case of the death, marriage, or other dis- 
 ability of a party, the court, on motion, at any time within' one 
 year thereafter, or afterward, on a supplemental complaint, may 
 allow the action to be continued by or against his representative 
 or successor in interest. After a verdict shall be rendered in any 
 action for a wrong, such action shall proceed thereafter in the same 
 manner as in cases where the cause of action survives by law. At 
 any time after the death, marriage, or other disability of the party 
 plaintiff, the court in which an action is pending, upon notice to 
 such persons as it may direct, and upon application of any person 
 aggrieved, may, in its discretion, order that the action be deemed 
 
EJECTMENT IN NEW YORK. C29 
 
 abated, unless the same be continued by the proper parties, within 
 a time to be fixed by the court, not less than six months nor exceed- 
 ing one year, from the granting of the order. And where judgment 
 has been recovered for the possession of real property, and the party 
 recovering said judgment shall have died subsequent to the recovery 
 thereof, his successor in interest in said land, whether by grant, 
 devise or inheritance, may revive said judgment and enforce the 
 same, by execution, on motion, within one year after said death, 
 or afterward on supplemental complaint. (Code, § 121.) At com- 
 mon law, the death of a sole plaintiflfor sole defendant in ejectment, 
 before final judgment, abated the suit; so the action of ejectment 
 abated at common law, on the decease of a sole defendant, before 
 verdict: and this rule of the common la^y, in regard to the abate- 
 ment of the action of ejectment upon the death of a sole defendant 
 tlierein, is not clianged b.y the Revised Statutes or the Code. Hence, 
 in an action under the Code to recover possession of land, corres- 
 ponding to the former action of ejectment, the death of a sole 
 defendant, before verdict, abates the action, and it cannot be con- 
 tinued, under section 121 of the Code, against his heirs at law, as 
 his successors in interest. This section of the Code has reference 
 expressly to the continuance of the cause of action, and not merely 
 of the right of the property. The cause of action for the recovery 
 of land involves two ideas, says Judge Willard, in an opinion 
 delivered in the supreme court. First, the valid subsisting inter- 
 est of the plaintiff in the premises claimed, and right to recover the 
 same, or the possession thereof, or of some share, interest or portion 
 thereof; and, second, the actual occupancy thereof by the defend- 
 ant ; or, if not so occupied, the exercise by the defendant of acts 
 of ownership on the premises claimed, or the claiming title thereto, 
 or some interest therein, at the commencement of the suit. This 
 is apparent from the provisions of the Revised Statutes hereinbefore 
 given. The first branch of this description of a cause of action 
 continues, notwithstanding the defendant may die pending the 
 action, and before verdict or judgment ; but the second does not 
 continue. If the defendant was in the actual possession of the 
 premises, and the plaintiff, being the owner, had a cause of action 
 against him, it wonld be a contradiction in terms to say, after he is 
 dead, that his heirs were in truth the actual occupants when the 
 action was commenced. By the death of the original defendant 
 a new cause of action would be given to the plaintiff, providing a> 
 
630 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 new occupant succeeds to the possession. If the premises are left 
 vacant, witliout an occupant or a claimant, the plaintiff may enter 
 without suit. In such case there is nobody against whom he could 
 bring a fresh action, and no reason would seem to exist why the 
 original action should be continued. The right of entry in such 
 case is better than a cause of action. So that there is really no 
 reason why an action of ejectment should be continued in a case 
 where a sole defendant dies before the same has been tried ; and, 
 besides, there is no provision of the statute Avhich will justify such 
 a continuance. And it has been held that the action of ejectment 
 against a sole defendant is abated by the death of the defendant 
 before a report of referees is made, or verdict rendered, and that 
 no judgment can be entered upon such report or verdict nunc pro 
 tunc, because such report or verdict would be null and void. {Kis- 
 sam V. Hamilton, 20 How. Pr. E. 369. Putnam v. Yan Buren, 
 7 ib. 31. Moseley v. The Albany and Northern Railroad Com- 
 pany, 14 ib. 71. Yrooman v. Jones, 5 ib. 370.) 
 
 It is necessary, both under the provisions of the Revised Statutes 
 and the Code, for any person asking to be made plaintiff in the 
 place of a deceased plaintiff in ejectment, to show that he has 
 succeeded to the title of the deceased plaintiff; and the person 
 applying is bound to show a clear prima facie case before he can 
 be permitted to come into the litigation. 
 
 After the death of one of several plaintiffs in an ejectment suit, 
 a motion was made, under section 121 of the Code, by the sur- 
 viving plaintiffs, at special term, to substitute the names of two 
 individuals and the people of the state, to prosecute the suit, 
 as the representatives or successors in interest of the deceased 
 plaintiff. It being a matter of doubt which of the three parties 
 proposed was entitled to the right, the first being sole trustee 
 under the will, it being doubtful whether he would take the title 
 or only a power in trust, the second being an heir, but doubtful 
 whether a citizen of the United States, and, if neither of the two 
 had the right, it was doubtful whether it did not pass by escheat 
 to the people of the state. The court denied the motion, on the 
 ground that it did not appear who was the successor of the 
 deceased plaintiff; and it was held, that a case could not be made 
 out for, substitution of parties plaintiffs in place of the doceased 
 plaintiff, by persons who claim in different characters ; and, fur- 
 ther, that the term successor, as used in the statute, does not 
 
EJECT3IENT 72V I7EW TOEK. 631 
 
 include the people where they claim by escheat. Theirs is a 
 prior right wliich has become paramount by reason of the execu- 
 tion of that upon which the action is founded. (<S'^. John v. West, 
 4 How. Pr. E. 329. Same Case, 10 ib. 253.) 
 
 According to the Revised Statutes, in cases where no other pro- 
 vision is made, the judgment in the action of ejectment, if the 
 plaintiff prevail, shall be, that the plaintiff recover the possession 
 of the premises, according to the verdict of the jury, if there was 
 snch verdict ; or, if the judgment be by default, according to the 
 description thereof in the complaint, with costs to be taxed. 
 (2 Stat, at Large, 317, § 33.) 
 
 The practice with respect to bringing the action of ejectment to 
 trial, and tiie proceedings upon the trial and subsequent thereto, 
 and in obtaining judgment \)j default in the case, is similar in all 
 respects to other cases of actions ex delictu, and the same need not 
 be explained liere. In case of tlie default, the plaintiff is obliged 
 to make his application to the court for the relief sought at a 
 special term or circuit in the county in which the land in contro- 
 versy is located ; and the court will either take the evidence and 
 order judgment at once, or, where damages are asked for the with- 
 liolding of the premises, will order the damages to be assessed by 
 a jury. (Code, § 246.) 
 
 The county named in the complaint is the county of trial, 
 whether there be an issue joined or a judgment on failure of the 
 defendant to answer, and where there is no answer, it has been 
 held, that the application for judgment should be made in the 
 county designated in the complaint as the county of trial. ( War- 
 ner V. Kenny, 3 How. Pr. E. 323.) But, by one of the standing 
 rules of the supreme court, it is provided, that where the plaintiff 
 is entitled to judgment by reason of the defendant failing to answer 
 the complaint, and the relief demanded requires application to be 
 made to the court, such application may be made at any special 
 term in the district embracing the county in which the action 
 is triable, or in an adjoining county ; such application may also be 
 made at a circuit court in the county in which the action is triable. 
 But where a reference or writ of inquiry shall be ordered, the same 
 must be executed in the county in which the action is triable, unless 
 the court shall otherwise order. (General Rule 24.) 
 
 Every judgment in the action of ejectment, rendered upon a 
 Verdict of a jury or. a report of a referee upon the facts, or lipbn 
 
632 LAW OF EJECTMENT AND ADVERSE ENJOT^tENT. 
 
 a decision of a single judge npon the facts, is made concliisiro as 
 to the title established in the action, upon tiie party against -w-hona 
 the same is rendered, and against all persons claiming from, 
 through or under such party, by title accruing after the com- 
 mencement of such action. (2 Stat, at Large, 317, 318, § 36.) 
 
 At common law, the action of ejectment was a mere possessory 
 action, and concluded no one, either as to tlie title or possession, 
 except as to the time between the day of the demise and the 
 recovery. Even the party against whom the judgment was ren- 
 dered was at liberty' to bring a new action and again litigate as to 
 the possession as often as lie pleased. But, by the Eevised Statutes 
 of New York, a judgment in an action of ejectment, unless a new 
 trial be granted, concludes the parties to the action, and all per- 
 sons claiming under them, by a title accruing after the commence- 
 ment of the action. Hence it has been held, that the judgment 
 record in an action of ejectment is evidence against the original 
 parties to the action and the other persons named in the statnte, 
 but that it is no evidence against any one else. {Ainslie v. The 
 Mayor, etc., of Nevj York, 1 Barb. E. 168.) 
 
 A judgment in ejectment against tenants is not conclusive upoii 
 the landlord ; so held, although the latter retained an attorney to 
 defend the suit bronglit against his tenants, especially as on the 
 trial the title as between the plaintiff in the suit and the landlord 
 did not come in question. It is plain the statute applies only to 
 the party or parties to the record, and privies. ( Vide Ryerss v, 
 Eippey, 25 Wend. R. 432.) And it has been held, that a recovery 
 against the plaintiff, in an action of ejectment brought previous 
 to the time when the Revised Statutes went into operation, is no 
 bar to an action brought ly him since that period, although the 
 judgment in the former action was entered after those statutes 
 ■went into effect, and the j^laintiff did not apply for a new trial in 
 the mode prescribed by those statutes. {Bates v, Stearns, 23 
 Wend. R. 482.) 
 
 A judgment in ejectment is only conclusive as to the title 
 •established in the action ; and parol proof may be given to show 
 the grounds upon which a former judgment proceeded, where, 
 from the fonn of the issue, such grounds do not appear by the 
 record itself; provided the matters alleged to have been passed 
 upon be such as might legitimately have been given in evidence 
 under the issue joined. Accordingly, where, in an action of eject- 
 
EJECTMENT IN NEW YORK. 633 
 
 ment, the defendant, to defeat the action, introduced and read in 
 evidence the record of a judgment in an action of ejectment 
 between the plaintiff and others, plaintiffs, and the present de- 
 fendant, then defendant for the same premises, and a judgment 
 entered thereon ; the court held that the plaintiff might prove by 
 a person present, what title the defendant set up and established 
 on the former trial, and on what questions tlie writ was litigated 
 and decided ; those facts not appearing by the record. {Briggs 
 V. Wells, 12 Barb. E. 567.) . 
 
 But ia most respects a judgment in ejectment has the same 
 force and efficacy as any other judgment. Hence a former recov- 
 ery in an action of ejectment, in which action the question in 
 controversy was the location of the boundary line between the 
 parties, is conclusive in a subsequent action of trespass quare 
 clausem fregit between the grantee of the plaintiff in the eject- 
 ment suit, and the defendant in that suit, and a person claiming 
 title through him as a privy. {Beebe v. Elliott, 4 Barb. E. 457.) 
 
 The court in which a judgment in ejectment shall be rendered, 
 at any time within three years thereafter, upon the application of 
 the party against whom the same was rendered, his heirs or 
 assigns, and upon payment of all costs and damages recovered 
 thereby, is required to vacate such judgment, and grant a new 
 trial in such cause. And the court, upon subsequent application 
 made within two years after the rendering of the second judg- 
 ment in said cause, if satisfied that justice will thereby be promoted, 
 and the rights of the parties more satisfactorily ascertained and 
 established, may vacate the judgment, and grant another new 
 trial. But no more than two new trials can be granted under this 
 provision. (2, Stat, at Large, 318, § 37.) 
 
 Under the provisions of the Eevised Statutes, a defendant in 
 ejectment cannot have a third new trial, though the first two may 
 be granted by an inferior court, after which the cause is removed to 
 the higher court, by certiorari. {Brown v. Crim, 1 Denio's E. 565.) 
 
 When a defendant in ejectment moves for a new trial, under the 
 statute, the court cannot require, as a condition, that he shall pay 
 the costs of a suggestion for mesne profits ; nor can the court 
 impose any terms beyond payment of costs of the principal suit. 
 {Shaw V. McMaren 2 Hill's E. 417.) 
 
 A new trial in ejectment is obtainable, as of course, under the 
 foregoing provision of the Eevised Statutes, only within three 
 80 
 
.634 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 years after tlie first judgment in the action, and not witliin three 
 years after the affirmance of that judgment in the court of last 
 resort. It has been held that this provision applies to actions 
 under the Code, but it is essential to the relief that there should 
 have been a trial by jury and verdict rendered, upon Avhieh the 
 judgment was entered, and it is incontrovertible that, by the provi- 
 sions of the statute, the application for the new trial, and offer to 
 pay costs, must be made within three years after the judgment is 
 rendered upon the verdict. The court in which the action is 
 pending can only grant the relief contemplated by the provision 
 of the statute, when the application is made within that time. 
 {Chautauqua County Banic v. White, 23 N. Y. R. 347. And vide 
 Holmes v. Davis, 2 1 Barb. E. 265. Lany v. Ropke, 1 Duer's R. 701.) 
 
 An order of the supreme court, vacating a judgment in an 
 action to recover the possession of land, and granting a new trial 
 upon payment of such judgment, under the provisions of the Re- 
 vised Statutes respecting new trials in ejectment, is not the subject 
 of appeal to the court of appeals. {Evans v. Millard, 16 N. Y. 
 R. 619.) And when a new trial is granted on motion of the 
 plaintiff in ejectment, the court will, at the same time, if reason- 
 able grounds be shown, give him leave to amend his complaint, 
 by inserting the names of additional plaintiffs, with proper counts ; 
 and this whether the new trial be granted under the statute, ^- for 
 cause. {Martin v. Lalie, 3 Hill's R. 475.) 
 
 A judgment in ejectment rendered by default is conclusive, from 
 and after three years from the time of docketing the same, upon the 
 defendant, and upon all persons claiming from or through him by 
 title accruing after the commencement of the action. But within 
 five years after the docketing of such judgment, on the application 
 of the defendant, his heirs or assigns, and upon payment of all 
 costs and damages recovered thereby, the court may vacate such 
 judgment and grant a new trial, if such court shall be satisfied that 
 justice will be promoted, and the rights of the parties more satis- 
 factorily ascertained and established. But if the defendant in the 
 action, at the time of the docketing of the judgment by default, be 
 either within tlie age of twenty-one years, or insane, or imprisoned 
 on any criminal charge; or in execution upon some conviction of a 
 criminal offense, for any term less than for life, or a married woman 
 the time during which such disability shall continue will not be 
 deemed any portion of the said three years ; but any such person 
 
EJECntENT IN NEW YORK. C35 
 
 may bring an action for the recovery of sncli premises after tliat 
 time, and within three years after such disability shall be removed, 
 but not after that period. (2 Stat, at Large, 318, §§38, 39.) 
 
 The provisions of the Revised Statutes in respect to the force 
 and effect of judgments in the action of ejectment, and the grant- 
 ing of new trials therein, are not repealed by the Code, and are, 
 consequently, still in force. {Thompson v. Sfierrard, 22 How. Pr. 
 E. 155, 157.) When the judgment in ejectment is rendered upon 
 the verdict of a jury, or a report of a referee upon the facts, or upon 
 a decision of a single judge upon the facts, the court must vacate 
 the same and grant a new trial upon the proper application, and 
 upon payment of the costs and damages; but when the judgment 
 is rendered by default, the court may vacate the same and grant a 
 new trial, if the court is satisfied that justice will be promoted 
 thereby; the new trial in the former case is pretty much a matter 
 of course, while in the latter it is a matter of sound discretion. 
 If the person entitled to commence such action of ejectment 
 shall die during the continuance of any disability before specified, 
 and no determination or judgment be had of or upon the title, 
 right or action so to him acci'ued, his heirs may commence such 
 action after the time limited for that purpose, and within three 
 years after his death. If the plaintiff shall have taken possession 
 of the premises, by virtue of any recovery in ejectment, such pos- 
 session will not in any way be affected by the vacating of any 
 judgment, as before specified ; and, if the defendant recover in 
 any new trial authorized, he will be entitled to a writ of possession 
 in the same manner as if he was plaintiff. Upon any new trial 
 granted, the defendant may show any matters in bar of a recovery 
 which he might show to entitle him to the possession of the prem- 
 ises if he were plaintiff in the action. (2 Stat, at Large, 318, 319, 
 §§ 40, 41, 42.) 
 
 The provision of the statute entitling the defendant in ejectment 
 to a writ of possession if he recover in any new trial granted him 
 under the 37th section of the statute hereinbefore stated, and pos- 
 session has been taken in virtue of the former recovery, is held to 
 apply to all cases where he obtains a regular judgment in his favor, 
 whether upon a trial or otherwise. Should the plaintiff, after the 
 new trial granted in such case, enter and serve a rule for discon- 
 tinuance, and- pay the costs of the suit, probably the court would 
 allow the defendant to proceed to judgment as a means of regain- 
 
636 LAW OF EJECTMENT AND ADVERSE ^NJOTMENT. 
 
 ing possession, or award a writ of possession upon the equity of 
 the statute without a judgment. (Huntington v. Forlcson, T Hill's 
 R. 195.) 
 
 The plaintiff recovering judgment in ejectment in any case may 
 recover damages against the defendant for the rents and profits of 
 tlie premises recovered. (2 Stat, at Large, 319, § 43.) And, by 
 the Code, the plaintiff may unite in the same complaint several 
 .causes of action to recover real property, with or without damages 
 for the witliholding thereof and the rents and profits of the same. 
 (Code, § 167, sub. 5.) So, as a matter of course, the judgment in 
 such a case may be in conformity with the provisions of the statute 
 above stated. The statutes of New York provide for the recovery 
 of mesne profits in the action of ejectment, but the proceedings for 
 tliat purpose will be more appropriately explained in a subsequent 
 chapter. The cases in which the action of ejectment will lie in 
 the state of New York are given in a previous chapter, and need 
 not be repeated here. ( Vide ante, cli. 3.) 
 
 It may not be amiss to state that the wife of a mortgagor of land 
 for the purchase-money, whether she has or has not joined in the 
 mortgage, has an inchoate right of dower in the equity of redemp- 
 tion which is not affected by a foreclosure to which she is not a 
 party. {Mills v. Va?i Voorhies, 20 N. Y. E. 412.) But in such 
 a case, however, the remedy of the wife, after the death of her 
 husband, is not by ejectment ; she must bring her action to redeem 
 in a court of equity. 
 
 CHAPTER XXXVII. 
 
 THE ACTION TO EECOVEE EEAL PEOPEETT IN THE SEVEEAL STATES — THE 
 PEACTICE IN THE NEW ENGLAND STATES. 
 
 In the state of Maine it is provided by statute that any estate of 
 freehold in fee simple, fee tail, for life, or any term of years, may 
 be recovered by a writ of entry ; and such writs must be served 
 by attachment and summons, or copy of the writ, on the defend- 
 ant; but if he is not in possession, the officer must give the tenant 
 in hand, or leave at his place of last and usual abode, an attested 
 copy of the writ ; and if the defendant is not an inhabitant of the 
 
EJECTMENT IN MAINE. 637 
 
 state, the service on the tenant is made sufficient notice to the 
 defendant,, or the court may order further notice. 
 
 The demandant is required to declare on his seisin within 
 twenty years then last past, without naming any particular day, 
 or averring a taking of the pi'ofits, and allege a disseisin by the 
 tenant. lie must set forth the estate he claims in the premises, 
 whether in fee simple, fee tail, for life, or for years ; and if for life, 
 then whether for his own life or that of another ; but he need not 
 state in the writ the origin of his title, or the deduction of it to 
 himself; but, on application of the tenant, the court may direct 
 the demandant to file an informal statement of his title, and its 
 origin. 
 
 The demandant is not required to prove an actual entry under 
 his title ; biit proof that he is entitled to such an estate in the 
 premises, as he claims, and that he has a right of entry therein, is 
 sufficient proof of his seisin. 
 
 The action cannot be maintained, unless, at the time of com- 
 mencing it, the demandant had a right of entry ; and no descent 
 or discontinuance can defeat any right of entry for the recovery 
 of real estate. 
 
 Every person alleged to be in possession of the premises demanded 
 in the writ, claiming any freehold therein, may be considered a 
 disseisin for the purpose of trying the right; but the defendant 
 may plead in abatement, but not in bar, that he is not tenant of 
 the freehold, or by a brief statement under the general issue, filed 
 within the time allowed for pleas in abatement, unless by leave 
 of the court, the time thereafter is enlarged; and he may show 
 that he was not in possession of the premises when the action was 
 commenced, and disclaim any right, title or interest therein, and 
 proof of such fact will defeat the action ; and if he claimed, or 
 was in possession of only a part of the premises, when the action 
 was commenced, he must describe such pai't in a statement, signed 
 by him or his attorney, and filed in the case, and may disclaim the 
 residue ; and if tiie facts contained in such statement are proved 
 on trial, the demandant can recover judgment for no more than 
 such part. 
 
 If a person in possession has actually ousted the demandant, or 
 withheld the possession, he may, at the demandant's election, he 
 considered a disseisin for the purpose of trying the right, though 
 he claims an estate therein less than a freehold. 
 
638 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Ill the trial iipon the wi'it, on the general issue, if the demand- 
 ant proves that he is entitled to such estate in the premises as he 
 has alleged, and had a right of entry therein when he commenced 
 his action, he may recover the premises, unless the tenant proves 
 a better title in himself. 
 
 Persons claiming as tenants in common, joint tenants, or co- 
 parceners, may all, or any two or more, join in a suit for recovery 
 of lands, or may sue alone. The demandant may recover a speci- 
 fied part or undivided portion of the premises to which he proves 
 a title, though less than he demanded. 
 
 When a demandant recovers judgment in a writ of entry, he 
 may recover damages for the rents and profits of the premises 
 from the time his title accrued, subject to certain limitations 
 specified, and also for any destruction or waste of tlie buildings or 
 other property, for wliich the tenant is by law answerable. The 
 tenant is not liable, however, for the rents and profits of the 
 premises for more than six years, nor for waste or other damages 
 committed before that time, unless the rents and profits are 
 allowed in set-ofi" to his claim for improvements. Nothing, how- 
 ever, contained in tlie statute, will prevent the defendant from 
 maintaining an action for mesne profits, or for damage to the 
 premises, against any person except the tenant, in a writ of entry, 
 who has had possession of the premises, or is otherwise liable to 
 such action. 
 
 The statute provides that no real action shall abate by the 
 reason of the death or intermarriage of either party, after its entry 
 in court ; but the court must proceed to try and determine the 
 action, after such notice as the court orders has been duly served 
 upon all interested in his estate, personally, or by publication in 
 some newspaper. 
 
 If the demandant recover judgment in the cause, the court may 
 order one or more writs of possession to issue, as are necessary ; 
 and a writ of possession may issue, and judgment will be con- 
 clusive against all such as have been so notified, whether they 
 appeared and defended or not ; and costs will be ordered to the 
 prevailing part}'. 
 
 "When the demanded premises had been in the actual possession 
 of tlie tenant, or tliose under whom he claims, for six successive 
 years or more before the commencement of the action, the tenant 
 will be allowed for his betterments. In the action to recover pes- 
 
EJECTMENT IN MAINE. 639 
 
 session of lands, if the demanded premises are not clearly described 
 in the declaration, the court may direct a nonsuit. If the tenant 
 or person under whom he claims, has been in possession of a tract 
 of land lying in one body, for six years or more before the com- 
 mencement ot the action, and only part of it is demanded, and 
 the tenant alleges that the demandant has as good a title to the 
 whole as to sucii part, he may request the jury to inquire and 
 decide that fact ; and if they so find, they must proceed no further ; 
 and the court must enter judgment that the writ abate, unless the 
 declaration is amended so as to include the whole tract, which the 
 court may allow without costs. The tenant may consent that the 
 demandant may recover a specified part of the premises claimed, 
 and if the demandant does not take judgment in his favor for the 
 part described in the tenant's notice of consent, if he fails on the 
 trial to recover more than the tenant consented that he might take 
 judgment for, he can recover no Costs, but the tenant may recover 
 his costs from the time of such notice. ' 
 
 Provision is made in the statute for the allowance to the tenant 
 for his betterments where the cause is determined in favor of the 
 demandant upon demurrer, default or by verdict ; and the tenant 
 may also obtain compensation for buildings and improvements on 
 the i^remises, to be estimated by the jury according to the increased 
 value of. the premises by reason thereof, and the jury may also 
 appraise the value of the premises without such improvements, 
 whereupon the demandant may abandon the premises, or he may 
 pay into the clerk's office of the court, or to such person as the 
 court appoints, for the use of the tenant, the sum assessed for the 
 buildings and improvements, with interest thereon, as he may 
 elect ; but if he elects to abandon the premises to the tenant, then 
 the tenant must pay the demandant for his premises without such 
 improvements. 
 
 In all actions respecting lands, or any interest therein, a title- 
 deed ofiered in evidence may be impeached by the defendant as 
 obtained by fraud, where the grantor, if a party, could impeach it, 
 if the defendant has been in the open, peaceable and adverse pos- 
 session of the premises for twenty years. 
 
 In all real and mixed actions in which the tenant proves that 
 he and those under whom he claims have been in the open, noto- 
 rious, adverse and exclusive possession of the demanded premises, 
 claiming in fee simple, for forty years next before the commence- 
 
640 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ment of the action, and the jury so find, the demandant will 
 recover no costs. 
 
 After judgment has been rendered for the demandant on a writ 
 of entry, a writ of possession may issue in the name of the original 
 demandant against the original tenant, though either or both are 
 dead ; and, when executed, it will inure to the use and benefit of the 
 demandant, or whoever is then entitled to the premises under him, 
 as if executed in the life-time of the parties. (E.. S. tit. 9, ch. 104.) 
 
 The action to recover real property is noticed for trial, placed 
 upon the calendar, and moved on for trial, as other actions, before 
 the same court. 
 
 The decisions of the courts under the Maine statute in respect to 
 real actions are quite numerous, but enough only will be referred 
 to, to bring out fully the principles M-hicli liave been settled. 
 
 In respect to the method for the commencement of real actions, 
 tlie courts have held tliat the form of process may be a writ of 
 attachment, or an original summons, at the election of the demand- 
 ant. {The Maine Charity School v. I>insmore, 20 Maine E. 278.) 
 
 In respect to the title upon which the action can be maintained, 
 it lias been held, that the owner of the equity of redemption of 
 real estate may maintain a real action for its possession against 
 any one except the mortgagee and those claiming under him. 
 {Stimson v. Boss, 51 Maine K. 556. Hucldns v. Shaw, 34 ib. 166. 
 Vide ante, ch. 4.) 
 
 The title to the testator's real estate does not vest in adminis- 
 trators de bonis non, and consequently they cannot in that capacity 
 maintain a real action. {Appleton v. Strickland, 32 Maine K. 174.) 
 
 A writ of entry upon a mortgage may be maintained against the 
 tenant in possession, though he be not the holder of the equity of 
 redemption. {Tattle v. Lane, 17 Maine E. 437.) 
 
 An lieir may maintain a writ of right, on the seisin of his ances- 
 tor, at any time within thirty years from the commencement of 
 the disseisin, though the ancestor had been disseised more than 
 twenty years at the time of his decease. {Mason v. 'Walker, 14 
 Maine E. 163.) 
 
 In ejectment, the fact that the defendant has an easement in the 
 demanded premises constitutes no bar to the plaintiff's right of 
 recovery. If disturbed in the enjoyment of his easement, the 
 defendant may enforce his rights by a suit against those by whom 
 the disturbance is caused. {Blake v. Haver, 53 Maine K. 430.) 
 
EJECTMENT IN MAINE. 641 
 
 "Where, in the trial of a wrji of entry, the plaintitf 's title to the 
 land in question depends upon a levy, a valid judgment must be 
 proved, if the defendant be not a party or privy to it. {Tebbelts 
 V. Estes, 52 Maine E. 566.) 
 
 To a good declaration in a writ of entry four things are neces- 
 B^Yj: 1. The premises demanded must be clearly described. 
 2. The estate which the demandant 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 his own life or tijat of 
 another. 3. An allegation that, the demandant was seised of the 
 estate claimed within twenty years. And, 4. A disseisin by the 
 tenant. 
 
 In general the action must be against a person claiming an estate 
 not less than a freehold ; but if the person in possession has actu- 
 ally ousted the demandant, or withheld the possession, he may, at 
 the demandant's election, be considered a disseisor for the purpose 
 of trying the right, though he claims an estate less than a freehold. 
 ( Wyman v. Brown, 50 Maine E. 139. Lincoln v-. Edgeconib, 
 
 31 ib. 345. Gregory v. Tosin, 24 ib. 308. Matthews v. Demerritt, 
 
 32 ib. 312. Dow v. Plumrner, 17 ib. 14.) 
 
 By tlie rules of pleading, in a real action, recognized under the 
 statuteo of Maine, the defendant admits himself to be in possession 
 of all the land demanded, if he files no disclaimer of the whole or 
 any part of it. {Blake v. Dennett, 49 Maine E. 102.) And under 
 the plea of the general issue, the defendant in a real action cannot 
 give in evidence an outstanding title acquired by him from a third 
 person since the date of the writ. And, indeed, such a title can- 
 not be pleaded in bar of the action in any way, although it would 
 be otherwise if the title was purchased from the demandant. {Clarh 
 Y. Pratt, 55 Maine E. 546. Parlin v. Haynes, 5 Greenl. E. 178. 
 Jewett V. Felker, 2 ib. 339.) 
 
 The real struggle under the general issue, in a real action, is to 
 see which party can show the better title in himself. ( Wymcm, v. 
 Brown, supra.) The general issue adnuts the tenant to be in pos- 
 session of all the land not specially disclaimed. {Perhins v. Baiit, 
 43 Maine E. 280.) ' 
 
 In the state of 'New Hampshire, in real actions and actions of 
 ejectment, the original M'rit must be by summons or attachment 
 only. Where the name of the defendant is unknown to the plaint- 
 iff, the writ may be issued against him by a fictitious name, and, 
 81 
 
6i2 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 being duly served, it will not for that cause be abated, but may be 
 amended on such terms as the court may order. The writ must 
 be indorsed by the plaintiff, or by his agent or attorney, if the 
 plaintiff is an inhabitant of the state ; otherwise by some respon 
 sible person who is such inhabitant ; and if the defendant recover 
 costs the person indorsing the writ may be liable therefor. The 
 form of the process is given in the statute. (Gen. Stat. 1867, ch. 203.) 
 Where the defendant is not an inhabitant of the state, or his 
 residence is unknown to the officer having the writ for service, 
 and the writ is not served on the defendant in person, the writ in 
 the action to recover real estate may be served by leaving a copy 
 of the same at his abode, or with his agent authorized to appear 
 for him, or with his tenant on or near the premises claimed, which 
 must be proved by the certificate under oath of the person by 
 whom it was left. (Gen. Stat. ch. 204, §§ 5, 6, 8.) 
 
 No person can be arrested on mesne process in any real action or 
 actions of ejectment. (Gen. Stat. ch. 206, § 6.) 
 
 In real actions the suit will not abate because all the tenants are 
 not named in it, but those on whom the writ is served must 
 . answer for such part of the premises demanded, as they claim, and 
 may disclaim the residue. (Gen. Stat. ch. 207, § 10.) 
 
 Any person against whom any real action is brought for the 
 recovery of real estate may, with his plea, file a brief statement, 
 setting forth that he and the persons under whom he claims have 
 been in the actual peaceable possession thereof, under a supposed 
 legal title, for more than six years before the action was com- 
 menced, and that the value thereof has been increased by them by 
 buildings or other improvements. And the jury, if they find a 
 verdict for the plaintiff, must determine if the lands have been so 
 possessed and improved, and the amount of the increased value 
 thereof, after allowing for any waste or injury the same may have 
 sustained. The judgment recorded for the plaintiff upon such 
 verdict must be conditioned, that if the plaintiff shall within one 
 year pay to the clerk of the court, for the use of the defendant, 
 the amount of the increased value so found, a writ of possession 
 shall issue for the plaintiff ; otherwise all his right to such lands 
 will be barred. (Gen. Stat. ch. 213, §§ 5, 7, 8.) In real actions, 
 the defendant who disclaims the whole of the demanded premises, 
 is entitled to costs, unless the plaintiff maintain his writ as to 
 some part thereof. (Gen. Stat. ch. 214, § 6.) 
 
EJECTMENT IN VERMONT. 643 
 
 The practice in real actions, in New Hampshire, is the same as 
 in other personal actions, except as modified by the statutes lierein 
 cited. 
 
 A writ of attachment may he used in the commencement of a 
 real action, and goods may be attached to pay the cost of the suit. 
 {Rand v. Sherman, 6 ]S". k. E. 29.) 
 
 Husband and wife should join in a writ of entry to recover the 
 possession of land which was conveyed to them both during their 
 natural lives. (47 N. H. E. 226.) 
 
 Neither the mortgagee nor his assignee, can be regarded as hold- 
 ing the land under a supposed legal title, within the meaning of 
 the statute relating to betterments. {Tripe v. Macey, 39 N. H. 
 E. 439.) But a tenant, in sustaining a claim for betterments, is 
 not obliged to show a paper title to the premises. Any species of 
 title, which, if valid, would be a legal one, is sufficient ; and if 
 the occupant, in good faith, supposes his title to be a legal one, 
 whatever its character may be, the requirement of the statute is 
 answered. The amount to be awarded to a tenant for betterments, 
 is to be determined by their value at the time of the trial ; and 
 evidence tending to show the condition of the premises at that 
 time, is admissible. ( Weiidell v. Moulton, 26 N. H. E. 41.) A 
 tenant in a writ of entry, however, is not entitled to be allowed 
 for the increased value of the land, by reason of improvements 
 made by them to whom he has conveyed, but only for improve- 
 ments made by himself, and those under whom he claims. 
 {Flanders v. Davis, 19 N. H. E. 139.) 
 
 In a writ of entry, where the tenant pleads the general issue as 
 to an undivided part of the premises demanded, and as to the residue 
 undivided disclaims, and the demandant replies to the disclaimer, 
 that the tenant entered into the part disclaimed, upon which issue 
 is joined, if a jury find the issue npon the plea of disclaimer in 
 favor of the demandant, he will be entitled to costs. {Society jov 
 the Propagation of the Gospel v. Sail, 2 N^ H. E. 416.) 
 
 In the state of Vermont, the possession of lands is recovered by 
 the action of ejectment, which must be brought, heard and tried 
 in the county in which the lands lie. (Gen. Stat. 1863, tit. 6, 
 oh. 33, § 10.) The action is commenced by the service of a writ 
 of ejectment, the form of which is prescribed by statute, (Gen. 
 Laws, tit. 38, ch. 127, form 6.) 
 
C44 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The action of ejectment must be prosecuted by the person hav- 
 ing claim to the seisin or possession of the lands, and must be 
 brought as well against the landlord, if any there be, as against 
 the tenant in possession of the premises, and, if otherwise brought, 
 the action will on motion be abated. 
 
 The judgment recovered in an action of ejectment, while 
 remaining in force, will be conclusive against all the parties to 
 the action, their heirs and assigns. 
 
 If the plaintiff in an action of ejectment neglects to join the 
 landlord, if there be any, with the tenant in the action, the land- 
 lord will not be prejudiced by the judgment rendered against the 
 tenant. In every judgment rendered for the plaintiff in ejectment, 
 he shall recover as well his damages as the seisin and possession 
 of the premises ; and if the title of the plaintiff in the action 
 shall expire or be conveyed by him after the commencement of 
 the action, the suit will not thereby fail, but the plaintiff may 
 recover judgment for his damageSi during the continuance of his 
 title, with costs. 
 
 The writ in the action of ejectment will not abate because all 
 the tenants are not sued, but those on whom service is made -must 
 answer for such part of the premises only as they shall distinguish 
 and set forth in their plea, and disclaim the remainder ; and if any 
 defendant shall disclaim the whole, he will recover costs, unless the 
 plaintiff shall prove such defendant in possession of all or part of 
 the premises demanded at the commencement of the action. On 
 the trial in the action, the plaintiff will recover on the merits, 
 according to his right. 
 
 If the plaintiff in the action claim title by mortgage, provision 
 
 is made for tlie defendant to redeem ; and every mortgagor, until 
 
 condition broken, is deemed to have, as against the mortgagee, the 
 
 -ilegal right of possession to the mortgaged premises, unless it is 
 
 otherwise stipulated in the mortgage. 
 
 Tenants in common of any lands may join in any action which 
 concerns their common interest in any such land. After final 
 judgment in the action of ejectment, provision is made for the 
 defendant to recover for his betterments ; and execution on the 
 judgment rendered in the action can issue only against the land 
 covered by the judgment in the action, and the same can in no 
 case issue against the body, or other lands, or the goods and chat- 
 tels of the defendant. 
 
EJECTMENT IN VERMONT. 645 
 
 The court may grant a view of the premises on the trial of the 
 action, if deemed necessary, but the same will be at the expense 
 of the party applying for the view. 
 
 The damages in the action of ejectment arising from mesne 
 profits may be recovered, but only as shall be just and equitable, 
 in view of improvements made upon the premises by the defend- 
 ant or those under whom he shall claim. (Gen. Stat. tit. 15, 
 ch. 40.) 
 
 Such are substantially the provisions of the statutes of Yermont 
 in respect to the action of ejectment, excepting those relating to 
 the action as between landlord and tenant, which have been given 
 in a previous chapter. {Ante, ch. 16.) 
 
 In ejectment, the plaintiff who has no prior possession to aid 
 him, must show title in himself even against one in possession 
 without title, unless he can show that the defendant is in under 
 him. {Perry v. Whipple, 38 Vt. E. 278.) And as against a prior 
 acjual possession not apparently wrongful, a defendant in eject- 
 ment cannot set up an outstanding title in a stranger unless he 
 connects himself with that title. {PerMni Administrator v. Blood, 
 36 Vt. E. 233.) 
 
 To maintain ejectment in Vermont, it must appear that there 
 has been a disseisin of the plaintiff, as well as a wrongful posses- 
 sion by the defendant. If the defendant is in possession of the 
 premises claimed, with the plaintiff's permission, without claim 
 of ownership, or refusal to yield possession, a demand of possession 
 or request to quit in reasonable time is necessary, in order to 
 render the defendant's occupancy wrongful, and as constituting 
 an ouster of the plaintiff. {Ohaiiiberlin v. Donahue, 41 Vt. E. . 
 Same Case, 8 Am. Law Eegister, N. S. 633.) 
 
 The claim for mesne profits, after judgment in favor of the 
 plaintiff in ejectment, is local in the state of Vermont, as well as 
 in New Hampshire, the same as at common law. {Burgess v. 
 Gates, 20 Vt. E. 326.) The object of the action of ejectment in 
 Vermont is declared to be not merely to recover the possession of 
 the land, but to settle the title and establish the right of property. 
 Hence any person, under whom the tenant in possession may, 
 legally speaking, be said to hold, whatever may be the nature or 
 character of the tenancy, should be liable to be made a party to 
 the action. There exists such a relation between the mortgagee 
 and mortgagor of land as entitles the plaintiff in ejectment to join 
 
646 LAW OF EJECTMENT AND ADVERSE ENJ0Y3IENT. 
 
 them as defendants, even though the mortgagee may never have 
 been in actual possession of the land. But the mortgagor, in such 
 case, will only he answerable for rents and profits where he has 
 received them ; and if the defendants plead severally, as they may 
 do, there is no difficulty in rendering judgment for the damages 
 against the mortgagee alone. {Marvin v. Dennison,''20 Vt. E. 662.) 
 
 In an action of ejectment, the plaintiff claimed title by virtue 
 of a deed to him from the defendant, containing a condition of 
 defeasance, in case the latter should, within one year, put a good 
 cellar under the house on the premises, finish the house in good 
 style, and paint it white. On the trial, the plaintiff proved a 
 breach of this condition and recovered judgment ; the court held 
 that the provisions of the statute relating to redemption by the 
 defendant in ejectment upon a mortgage or deed with defeasance, 
 did not apply to a case of this character, and that the defend- 
 ant's only remedy from the forfeiture of the estate was to be 
 obtained in a court of equity. (Harrington v. Donaldson, 31 Yt. 
 K. 535.) And it Seems that courts of law, by statute, have the 
 power to fix the time, and foreclose the defendant's equity of 
 redemption only in those cases when the conveyance is a technical 
 moi-tgage, by deed, to be void upon condition, or with defeasance 
 under seal. (Miller v. Hamhlet, 11 Vt. R. 499.) 
 
 "Where plaintiffs commence an action of ejectment against two, 
 which is delayed by an injunction in chancery, they may recover 
 the whole amount of the rents and profits against both defendants, 
 as damages, notwithstanding one was only tenant, and continued 
 in possession but a short time after the commencement of the 
 suit, especially if the tenant did not disclaim title, or suffer judg- 
 ment against himself until a final judgment is rendered. (Buf- 
 fern v. Sutherland, 13 Vt. E. 309.) 
 
 The estate and right of possession are given to the mortgagee 
 by the Vermont statute, after condition broken, and he may, after 
 condition broken, sustain his action of ejectment against the mort- 
 gagor, or his grantee, without notice to quit. (Pierce v. Brown 
 24 Vt. E. 165.) 
 
 It has been held, under the statute of Vermont, that the sole 
 test of the right of a defendant in an action of ejectment to 
 recover for betterments is the fact that he and those under whom 
 he claims, so far as improvements by them are concerned pur- 
 chased, supposing that they thereby obtained a good title in fee ; 
 
EJECTMENT IN VERMONT. 647 
 
 and this right does not depend upon the nature or kind of title 
 which tlie real owner may have, nor upon his having had a right 
 to the immediate possession at the time the betterments were 
 made, nor upon his negligence in asserting his title. {Whii/iiey v. 
 Bichardson, 31 Yt. E. 300.) 
 
 "Where there were two tenants in common of real estate, and a 
 third person obtaining a deed covering the share of one tenant, 
 supposing he was acquiring a good title thereto, and he entered 
 into possession of the entire premises and made improvements ; 
 and subsequently the other tenant brought ejectment against him 
 for his share, and recovered, it was held, that he was entitled to 
 recover, against the plaintiff in ejectment, the amount which the 
 share of the land thus recovered had been improved by the better- 
 ments upon the entire tract. {Strong v. Hunt, 20 Vt. R. 614.) 
 
 Where the jury, in an action of ejectment, have established the 
 fact that the deed under which the defendant claimed title was 
 fraudulent and void, and that the defendant was a party to the 
 fraud, the defendant is not entitled, on a declaration for better- 
 ments filed under the statute, to recover payment for the improve- 
 ments which lie has made upon the premises. In such case the 
 defendant in the suit for betterments is entitled to prove, in that 
 suit, by the record in the action of ejectment, that such was the 
 finding of the jury. And the plaintiff in the suit foB betterments 
 is not entitled, in that suit, to give in evidence any facts which 
 tend to show that such deed was not fraudulent, that matter hav- 
 ing become res adjudicata by the verdict in the former action. 
 Ifeither is he entitled to give in evidence any facts which tend to 
 show that the plaintiff in the action of ejectment had no title to 
 the premises in question. {Thompson v. Gilma/n, 17 Vt. R. 
 109.) 
 
 As to betterments, section 21, chapter 4l, General Statutes, was 
 obviously designed to put the plaintiff's right in respect to the basis . 
 of his damages arising from mesne profits, upon the same ground 
 as if no betterments had been made that the defendant would be 
 entitled to be allowed for. Under this rule and measure of dam- 
 ages, it would not be congruous or proper to subject the plaintiff, 
 under the general issue, to a reduction of damages on account of 
 improvements that must be excluded from consideration by the 
 jury in ascertaining the amount of mesne profits as a ground for 
 damages. In respect to improvements for which the defendant 
 
648 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 may properly be allowed, the statute provides for a distinct pro- 
 ceeding, in which the matter can be brought to a distinct issue, 
 and be tried on what legitimately bears on the subject. {Fordy. 
 Flint, 40 Yt. E. 382.) 
 
 "Where, in ejectment, the verdict is for the seisin and possession 
 and nominal damages only, the fact that a small piece of land is 
 coA|ered by the verdict that the defendant is not in possession of, 
 cannot jjrejudice the defendant because he has no claim to it, and 
 a motion to arrest on that account cannot prevail. (Administrator 
 ofEussel V. Moloney, 39 Vt. R. 579.) 
 
 In the state of Massachusetts, the action to recover real property 
 is usually denominated a writ of entry, and in the action the 
 demandant is required to declare on his own seisin, within twenty 
 years then last past, without specifying any particular day, and he 
 must allege a disseisin by the tenant, but need not aver a taking 
 of the profits; and he must then set forth the estate that he 
 claims in the premises, whether it is in fee simple, fee tail, or for 
 life, and if for the latter, whether it is for his own life, or for the 
 life of another, but he is not required to set forth the original gift, 
 demise, or other conveyance or title, by which he claims the 
 estate. (Gen. Stat. 1860, ch. 134, § 2.) In real actions founded 
 on mortgage titles, the declaration must allege the seisin to be " in 
 mortgage." (Gen. Stat. ch. 129, § 3.) 
 
 The law and practice relating to the pleadings and evidence in 
 the action or writ of entry on disseisin, as recognized and estab- 
 lished by the Eevised Statutes of the state, remain in force, ex- 
 cept as modified by chapters 129 and 134 of the General Statutes 
 of 1860. (Gen. Stat. ch. 134, § 8.) The declaration may be filed 
 in the clerk's office, on or before the day the writ is returnable, 
 and if no declaration has been inserted in the writ, or filed in the 
 clerk's office, it will be a discontinuance of the action, and the 
 •defendant may have judgment for costs; provided, that the court 
 may at anytime during the return term of the writ, for good cause 
 shown, and upon suitable terms, allow the plaintiflP to file his 
 declaration, and the action will not be discontinued if the declara- 
 tion is filed accordingly. (Gen. Stat. ch. 129, §§ 8, 9.) 
 
 Any defense to a real or mixed action, which might have been 
 made by plea in abatement, may be made by answer containing 
 such allegations or denials as may be necessary to constitute such 
 defense. (Gen. Stat. ch. 129, § 13.) 
 
EJECTMENT ZJV MASSACSUSETTS. 649 
 
 Special pleaa in bar, as formerly used, are abolished, and in real 
 and mixed actions the defendant may plead the general issue, and 
 give evidence under such plea, all matters which might formerly 
 have been pleaded in bar. (Gen. Stat. ch. 129, § 15.) 
 
 To raise an issue of lavr, the answer of the defendant in a real 
 action must contain a statement that the defendant demurs to the 
 declaration, or to some one or more counts therein, as the case 
 may be, and must assign specially the cause of the demurrer. 
 And a demurrer may be interposed when the declaration does not 
 state a legal cause of action substantially in accordance with the 
 rules prescribed. The particulars in which the alleged defect con- 
 sists must be specifically pointed out, and the attorney for the 
 defendant, if any, must certify upon the demurrer that he is of 
 opinion that there is such probable ground in law therefor as to 
 make it a fit subject for judicial inquiry and trial, and tliat it is 
 not intended merely for delay. (Gen. Stat. ch. 129, § 12.) 
 
 Two or more defendants making the same defense may answer 
 jointly. Different consistent defenses may be separately stated in 
 the same answer, and the action is deemed at issue when the plea 
 is filed. (Gen. Stat. ch. 129, §§ 16, 28.) » 
 
 The demandant is not required to prove an actual entry under 
 his title, but if he proves that he is entitled to such an estate as 
 he claims in the premises, Avhether as heir, devisee, purchaser, or 
 otherwise, and also that he has a right of entry therein, this will 
 be deemed sufficient proof of his seisin as alleged in the declara- 
 tion. But no such action can be maintained unless the demand- 
 ant has, at the time of commencing the same, a right of entry 
 into the premises. No descent or discontinuance will take away 
 or defeat any right of entry or of action for the recovery of real 
 estate. Every person who is in possession of the premises de- 
 manded in the writ of entry, claiming any estate of freehold 
 therein, may be considered as a disseisor for the purpose of trying 
 the right, whatever was the manner of his original entry on the 
 premises. And if the person in possession has actually ousted 
 the demandant from the possession of the premises, he may, at 
 the election of the demandant, be considered as a disseisor for the 
 purpose of trying the right, although he claims therein an estate 
 less than a freehold. (Gen. Stat. ch. 134, §§ 3, 4, 5, 6.) 
 
 Every suit upon a writ of entry must be prosecuted and con- 
 ducted in the same manner as if the demandant had, at the time of 
 82 
 
650 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 commencing the action, made an actual entry on tlie demanded 
 premises, and had been immediately ousted by the tenant ; so that 
 on a trial upon the general issue, if the demandant proves that he 
 is entitled to such estate in the premises as is set forth in the 
 declaration, and that he had a right of entry on the day Avhen the 
 action was commenced, he will recover the premises, unless the 
 tenant proves a better title in himself. (Gen. Stat. ch. 134, § 7.) 
 
 Any two or more persons claiming the same premises as joint 
 tenants, tenants in common, or coparceners, may join in a suit 
 for the recovery thereof, or any one may sue alone for his share, and 
 the demandant may recover any specific part of the premises, or 
 any undivided portion thereof to which he proves a sufiicient title, 
 though snch part or portion is less than is demanded in the writ. 
 (Gen. Stat. ch. 134, §§ 9, 10.) 
 
 It has been held by numerous authorities, in the state of Mas- 
 sachusetts, that the demandant in a writ of entry shall recover 
 according to his title, when he demands more than he has title to, 
 as if a man demanded the whole of a farm or a messuage, he may 
 recover a certain part of it. He may always recover less, but 
 never more, than he sties for. ( Vide Dewey v. Brown, 2 Pick. 
 R, 387. Somers v. SJcinner, 3 ib. 51. HolyoTce v. EasJdns, 9 ib. 
 259.) This has long been the rule in the action of ejectment, both 
 in England and the United States, and there are many authorities, 
 ancient and modern, to the point. To enable an heir to prosecute 
 a real action commenced by his ancestor, the Massachusetts courts 
 hold that it is only necessary that the death and the descent be 
 put upon th| record ; whether it is done by suggestion, or by a 
 new count, is immaterial. Thus, when the heir filed a written 
 notice, stating the death of the demandant, and that he was the 
 heir, and the tenant filed a denial of the descent, and the right of 
 the demandant and the fact of the descent were proved to the 
 jury, judgment was rendered for the heir. And if the demand- 
 ant dies after a verdict in his favor, and before judgment, it is 
 held that the heir may come in, and pray for judgment; and if his 
 right to come in is denied, it seems that a special issue will bo 
 ordered to try such right. {Holyoke v. Hashins, supra.) 
 
 It is held that one joint-tenant cannot alone maintain a writ of 
 entry under the Eevised Statutes, chapter 107, to foreclose a 
 mortgage, notwithstanding the Eevised Statutes, chapter 101, 
 sections 10 and 11. And it seems that the nonjoinder of a joint- 
 
EJECTMENT IN MASSACHUSETTS. 651 
 
 tenant as plaintiff, in a writ of entry to foreclose a mortgage, 
 may be taken advantage of under the general issue, since the 
 statute of 1836, chapter 273. ( Webster v. Vandeioater, 6 Gray's 
 R. 428.) 
 
 Under the practice recognized in Massachusetts, the plea of nul 
 disseisin to a writ of entry admits the possession of the tenant at 
 the date of the writ, but does not relate to any prior period. The 
 demandant is then required to prove a better title than the tenant, 
 or he cannot recover. And if a writ of entry is brought by two 
 demandants, 3,nd they prove a good title in themselves jointly at a 
 period prior to the date of the writ, it is held, that the tenant, 
 under a plea of nul disseisin, may show that subsequently, and 
 before the date of the writ, one of them conveyed his title to the 
 other, and thus defeat the action brought by the two jointly. 
 {Patten v. Adams, 8 Allen's R. 204.) 
 
 If, after a grant of land upon a condition subsequent, the estate 
 of the grantor is assigned under the insolvent laws of the common- 
 wealth, the courts hold that the grantor cannot thereafter main- 
 tain a writ of entry to recover possession of the granted premises 
 for a breach of the condition. By the rules of the common law, 
 the grantor in such a case could not maintain the action of eject- 
 ment ; for an entry on the premises would have been necessary to 
 avoid the conditional estate before bringing his action. But the 
 Revised Statutes of the State declared that a writ of entry to 
 recover any estate of freehold might be maintained by proof of 
 title and right of entry. (R. S. ch. 101, §§ 1, 4, 8.) And it seems 
 to have been adjudged by the supreme judicial court, upon argu- 
 ment and full consideration, within three years after those statutes 
 went into operation, that this change in the law was not confined 
 to the ordinary case of a wr^t of entry against a disseisor, but 
 extended to a writ of entry to enforce a forfeiture for breach of 
 condition. {Austin v. Cainbridgeport Parish, 21 Tick. R. ,220, 
 224.) And the same court reiterated the same doctrine in 1864, 
 and held that the demandant under similar circumstances could 
 not maintain the action. {Stearns v. Harris, 8 Allen's R. 597.) 
 
 If land is devised in a will to certain persons, and trustees are 
 appointed, by a codicil to the will, to receive the rents for a cer- 
 tain number of years, it is held that the devisees have a sufficient 
 title to enable them to maintain a writ of entry against a disseisor; 
 and the existence of a lease of the land for years, made by the 
 
652 LAW OF EJECTMENT AND ADVERSE ENJ0T3IENT. 
 
 trustees, it is held, will not defeat such writ of entry. {Brown v. 
 Stevens, 13 Allen's E. 346.) 
 
 Under the policy which prevails in Massachusetts, an equitable 
 estate will not sustain a writ of entry. {Chapin v. First Uni- 
 versalist Society of Ghicopee, 8 Gray's K. 580.) 
 
 It is held that in a real action brought against a married woman 
 alone, to recover possession of land in which she has only a right 
 of homestead, a qualified judgment may be entered for possession, 
 subject to the right of homestead. {Curtle v. Palmer, 6 Allen's 
 E. 401.) 
 
 It seems that a mortgage of real estate is a good defense to a 
 writ of entry, without a disclaimer of absolute title in fee simple. 
 A mortgagee, whether an entry into the possession of the jDrem- 
 ises has or has not taken place, has no occasion to disclaim an 
 absolute fee, or set out the nature of his interest. His seisin in fee 
 and mortgage is quite sufficient title to constitute a good defense, 
 and entitle him to a general verdict. {Hoxie v. Finney, 11 Gray's 
 R. 511.) But it has been held to be no defense to a real action to 
 prove that, since the date of the writ, a mortgagee, of the premises 
 has entered for the purpose of foreclosure, and that the tenant 
 now holds under him. ( Weston v. Sjpiller, 2 Allen's E. 125.) 
 
 A mortgagee may maintain a writ of entry against a subsequent 
 purchaser of the equity of redemption, who has conveyed it away 
 again, but still remains in possession, and may recover judgment 
 for possession. {Johnson v. Phillips, 13 Gray's E. 198.) 
 
 In respect to the sufficiency of the pleadings in a real action 
 iinder the Massachusetts policy, it is held that the court cannot say, 
 on a demurrer or motion to dismiss, that the following description 
 of the premises demanded in a -writ of enti'y is insufficient : "A 
 certain parcel of laud, with the buildings thereon, situate in Boston, 
 and bounded southerly by Eliot street, twenty feet; westerly on a 
 passage-way six feet and nine inches in width, sixty-one feet eleven 
 inches ; northerly on a passage-way three feet wide, nineteen feet 
 nine inches; and easterly by a line through the center of the 
 brick partition wall, sixty-one feet two inches ; with the appur- 
 tenances thereto belonging." {Riley v. Smith, 9 Allen's E. 
 370.) 
 
 It has been decided that in a writ of entry brought by an execu- 
 tor to foreclose a mortgage belonging to the estate of his testator, 
 averment of 'the representative capacity of the demandant is not 
 
EJECTMENT Ilf ERODE ISLAND. 653 
 
 essential to maintain the action, and his description of himself in 
 the writ as " administrator," instead of " executor," is held not to 
 be available as a defense in bar. {Sheldon v. Smith, 97 Mass. E. 34.) 
 
 The cases in which the action of ejectment, or writ of entry, 
 may be maintained, are enmnerated in a previous chapter, which 
 may be referred to for particulars on that head. {Ante, ch. 4.) 
 
 In the state of Rhode Island, an action to recover the posses- 
 sion of real property must be brought in the county in which the 
 land lies. (R. S. ch. 1T6, § 1.) 
 
 In every action of ejectment or trespass and ejectment for pos- 
 session of any real estate mortgaged, in which the defendant by 
 his plea shall aver a right of redemption, and whicb is not trav- 
 ersed by the plaintiff, the judgment must be conditional. (R. S. 
 ch. 189, § 7.) 
 
 "Where several persons are made defendants in an action of eject- 
 ment, and the sarffe shall be discontinued as to any one or more of 
 the defendants ; or if, upon the trial of the action, any one or more 
 of them shall be acquitted by verdict, or upon demurrer, every 
 defendant so discharged or acquitted will have and recover his 
 costs. (R. S. ch. 190, § 8.) 
 
 In actions of ejectment, or other actions concerning any estate 
 holder! or claimed in coparceny, common or joint-tenancy, where 
 the possession of such estate claimed is the object of the suit, the 
 same may be commenced by all or any two or more of the copar- 
 cenere, tenants in common, or joint-tenants, or the same may be 
 brought "by each one for his particular share of such estate; and 
 the same rules will prevail in actions of trespass for mesne profits. 
 (R. S. ch. 203, § 1.) 
 
 Actions of ejectment in the state survive the death of any of the 
 pa^-ties, and may be prosecuted or defended by the heir, devisee, 
 executor or administrator, as the right may descend or not. (R. 
 S. ch. 176, § 13.) And in all cases of ejectment the plaintiff is 
 entitled to a writ of estrepment to stay waste. (R. S. ch. 204, § 5.) 
 
 It has been held in Rhode Island, that a mortgagor in possession, 
 whose interest in the mortgaged premises has been levied and sold 
 under an execution, may, in an action of ejectment against him 
 by the purchaser, protect his possession by a lease for years from 
 his mortgagee, whose mortgage was prior to the levy ; and if this 
 title to continued possession has accrued pending the suit of eject- 
 ment, it may be pleaded puis da/rrein. {Simmotis v. Brown, 1 R. 
 
654 TjAW of ejectment and adverse enjoyment. 
 
 I. E. 427.) But a defendant in trespass and ejectment cannot, at 
 least under ordinary pleas to the maintenance of the action, pro- 
 tect his possession by setting up an outstanding mortgage of the 
 ancestor of the plaintiff purchased in by the defendant pending the 
 action ; nor by setting up such a mortgage discharged of record 
 before the commencement of the action, but assigned to him pend- 
 ing the action, although he proves that the mortgage was purchased 
 by him before the action and discharged by mistake of the mort- 
 gagee, and tlie assignment recites the purchase and mistake. Where 
 the title produced by a plaintiff in an action of trespass and eject- 
 ment is fatally defective for a cause not noticed or objected to by 
 the defendant at the trial, the court may, nevertheless, grant to the 
 defendant a new trial on the ground of such defect, provided it is 
 apparent that the defect, if objected to at the trial, could not have 
 been remedied by further proof on the part of the plaintiff. {I^iis- 
 fatrich v. Fitzpatrick, 6 E. I. E. 64.) 
 
 In ejectment to recover possession of lands mortgaged to the 
 plaintiff, it appearing by the defendant's plea that the mortgage 
 was given to recover the payment of a promissory note, the prin- 
 cipal sum of which was payable at the end of four years, but the 
 interest annually, it was held, that the condition of the mortgage 
 was broken by tlie non-payment of the annual interest for three 
 years, althougli the principal sum was not due ; and that a condi- 
 tional judgment for possession must be entered up for the plaintiff 
 in conformity to section 7, chapter 189 of the Eevised Statutes. 
 {Carpenter v. Carpenter, 6 E. I. E. 543.) 
 
 In the state of Connecticut the action to recover possession of 
 real property is properly called an action of disseisin, though fre- 
 quently termed ejectment, and is commenced and prosecuted the 
 same as other personal actions, except that all suits wherein the 
 title to land is to be tried and determined, must be brought and 
 tried in the countj' where the land lies. (Gen. Stat. 1866, tit. 1, 
 eh. 5, § 80.) But if the land consists of an entire lot, tract or 
 farm of land lying partly in two or more counties, the action to 
 recover the same may be brought and tried in either of such 
 counties. (Gen. Stat. tit. 1, ch. 5,"§ 81.) 
 
 The statute of Connecticut provides that persons entitled to the 
 reversion of estate granted or devised upon condition, may, on 
 breach of condition, enter or have the same remedy as the original 
 grantor. (Gen. Stat. tit. 1, ch. 15, § 279.) 
 
EJECTMENT IN CONNECTICUT. 655 
 
 "Where the action of disseisin is instituted by a mortgagee of real 
 estate, or by any person holding title under him, to obtain posses- 
 sion of such estate by virtue of title derived by mortgage, against 
 the mortgagor, or any person holding title to said estate under 
 him, the defendant may tender the amount of the debt, with the, 
 interest to the time of the tender, and the costs of suit, and sucli 
 tender will be a bar to the further prosecution of the action. And 
 in every action of disseisin to recover possession of lands of any 
 defendant in possession, who has purchased the lands believing 
 that. he acquired an unconditional title by such purchase, or who 
 holds under those who have thus purchased, or who have derived 
 a supposed title by devise, inheritance or otherwise from those who 
 have thus purchased, and such defendant, or those under whom lie 
 holds or from whom he claims to have derived a title, have made 
 valuable improvements thereon under a belief that he or thej'- 
 acquired a good title by such purchase, devise, inheritance or other 
 conveyance, and the verdict of the jury shall be for the plaintiff, 
 the court before whom such action may be pending may allow the 
 defendant for the improvements, after deducting a reasonable sum 
 for the use of sucli land, to be adjusted by an accounting ; and, 
 if the plaintiff elect in such case, the court may confirm the title 
 to such land in the defendant, on payment of such sum as the 
 court shall find in equity ought to be paid to the plaintiff. (Gen. 
 Stat. tit. 1, ch. 15, §§ 280, 281.) 
 
 The cases in which an action of ejectment may be brought in 
 the state of Connecticut have been stated in a previous chapter. 
 {Ante, ch. 4.) 
 
 The courts hold that in ejectment it is enough if the demanded 
 premises are described in the declaration with such substantial 
 accuracy that they can be identified by the application of the 
 evidence to the description. And the question necessarily goes to 
 the jury whether the proof is suificient to enable them to identify 
 the premises proved with those described. {Munson v. Muiison, 
 30 Conn. E. 425.) And the courts also hold that a declaration in 
 ejectment, containing but one count for several distinct parcels of 
 land, is not bad for duplicity ; though excepted to on that ground, 
 by special demurrer. Duplicity in other actions is deetned to be 
 merely a formal defect, to be taken advantage of only by a special 
 demurrer, and it was thought duplicity in this action could not, 
 on the trial, interfere in any degree with the justice of the case. 
 
656 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The court thought that the multiplication of counts in the action 
 of ejectment would be a novelty in practice, attended with no 
 advantages, which, although there may be no legal objection to it, 
 they were not called upon to encourage. {J3.otch.ldss v. Butler., 18 
 Conn. E. 287.) 
 
 It is held that a declaration in ejectment, containing the usual 
 allegations, is good, without demanding seisin and possession of 
 the demanded premises. {Cone v. Gone, 1 Day's R. 134.) 
 ■ "Where tlie declaration in an action of ejectment described the 
 demanded premises as being bounded south on a turnpike road, 
 and it appeared that they were bounded by the traveled part of 
 such road, the court held that the description in the declaration 
 was sufficiently certain to enable the plaintiff, after establishing 
 his title, to recover the land embraced in the highway. ( Wooster 
 V. Butler, 13 Conn. E. 309.) 
 
 It is held that an ouster by a tenant in common of his co- 
 tenant does not differ in its nature from any other ouster, and 
 in no respect except in the degree of evidence required. In 
 other cases the assumption of ownership is more clearly adverse 
 to all the world. In the case of a tenant in common, such assump- 
 tion, and the acts which indicate it, may be consistent with the 
 acknowledgment of the rights of the co-tenant ; acts, tlierefore, 
 which are decisive in the one case are equivocal in the other. 
 An actual intent to exclude the co-tenant from the enjoyment of 
 the property must be shown, and "no evidence on this point is 
 held to be so satisfactory as a refusal to admit him to possession, 
 or to account for profits received, on a demand made. But this 
 doctrine was not based npon any policy peculiar to the state of 
 Connecticut ; but was laid down by the court upon general princi- 
 ples ; and it was thought eminently proper and safe, before bring- 
 iug an action of ejectment against a tenant in common, to test the 
 intent with wliich the property is holden by a formal demand to 
 be let into the enjoyment of the right claimed. ^{Newell v. Woodr 
 ruff, 30 Conn. E. 492.) 
 
 It is held that a defendant in ejedtment cannot set up an 
 outstanding mortgage of the plainj;iff to a stranger, either to show 
 that the plaintiff has no legal title, *or to show that his actual title 
 is different from that alleged. .{Burr v. Spencer, 26 Conn. E. 159, 
 And vide Birge v. Wock, 34 ib. 156.) 
 
EJECTMENT IN CONNECTICVT. 657 
 
 In the state of Connecticut it is held that a man having merely 
 an equitable title must apply to a court of chancery before he can 
 sustain the action of ejectment. {Eells v. Day, 4 Conn. E. 95.) 
 
 The governing principle of the action of ejectment in Connecti- 
 cut is, that the plaintiff must prove a title in himself. But a right 
 of possession derived from the person having the legal title is sufiS- 
 cient. {Law v. Wilsm, 2 Root's E. 102.) 
 
 If the defendant in an action of ejectment pleads the general 
 issue, and claims no title in himself, it has been held in Connecticut 
 that he shall not be permitted to give in evidence a copy of a deed 
 from the plaintiff's grantor to a stranger, to prove that the plaintiff 
 has no title. But it does not appear from the report of the case 
 whether the objection prevailed on the ground of proving title in 
 a third person, or from its being merely a copy of a deed ; if on the 
 former, the decision may be questioned. {Phelps v. Yeomans, 
 2 Day's E. 227.) 
 
 It is held in Connecticut that one tenant in common can main- 
 tain an action of disseisin against a stranger, grounding his action 
 on the common title. {Barrett v. French, 1 Conn. E. 354.) 
 
 TJie title of a mortgagee, under a mortgage satisfied after for- 
 feiture, may be set up in Connecticut as a defense to an action of 
 ejectment. {Smith v. Vincent, 15 Conn. E. 1.) 
 
 It is laid down in Swift's Digest, page 507, that the action of 
 ejectment in Connecticut definitely settles the title to the land in 
 question, and that tlie judgment entered therein is a bar to another 
 action. But, according to some of the cases, a judgment in the 
 action of disseisin, either in favor of the plaintiff or defendant, is 
 not conclusive of the title. {Smith v. Sherwood, 4 Conn. E. 276. 
 Bradford v. Bradford, 5 ib. 127.) It has been held, however, 
 that a plea of estoppel to an action of ejectment is allowable. 
 {Crandall v. Gallup, 12 Conn. E. 365.) 
 
 This concludes the consideration of the action to recover real 
 property in the New England states. The cases in which the 
 action will lie in all of those states have been considered in a pre- 
 vious chapter. {Ante, ch. 4.) 
 
 83 
 
658 LAW OF BJECTXENT AND ADVERSE ENJOYMENT. 
 
 CHAPTER XXXYIII. 
 
 THE ACTION TO EECOVER EEAL PEOPERTY m THE SEVERAL STATES THE 
 
 PEACTICE IS NEW JERSEY, PENNSYLVANIA AND DELAWARE. 
 
 In the state of JSTew Jersey, the most of the principles which 
 govern the common-law action of ejectment apply to actions to 
 recover real property, although the practice lias been somewhat 
 modified by statute. In the action of ejectment as at present 
 prosecuted in that state, the old consent rule and all the fictions 
 formerly used in the action are abolished, and the action is com- 
 menced by summons in the name of the person claiming the 
 premises in question, as plaintifi^, and against the tenant in pos- 
 session thereof, as defendant; the summons must describe the 
 premises with such certainty as will apprise the defendant of their 
 description and situation, and so that from such description pos- 
 session thereof may be delivered ; and if the plaintiff claims only 
 an undivided interest therein, it must also state such interest ; and 
 the same must be served in the same manner as declarations in 
 ejectment are required to be served at common law, or in such 
 manner as the court may order, and may be made returnable in 
 term or vacation. (Laws of 1855, ch. 96, § 47. Elmer's Dig. 641.) 
 
 The form of the summons in ejectment is prescribed by the 
 statute, and may be to the effect following : 
 
 New Jersey, ss. Tlie state of New Jersey to the sheriff of the 
 county of Mercer, greeting : 
 
 We command you to summon C D to appear before our supreme 
 court of judicature, at Trenton, on the first day of February next, 
 to answer to the complaint of A B, who demands of him the pos- 
 session of the equal, undivided one-fourth part of a tract of land, 
 ■with the appurtenances, situate in the township of Hopewell, in 
 said county, containing fiftj acres, more or less, bounded on the 
 north by lands of E F, on the south by lands of Gi- 1 , on the east 
 by lands of J K, and on the M'est by lands of L M. 
 
 And, in default of his appearing and defending this action, judg- 
 ment will be entered against him, and he will be turned out of 
 possession of said land. 
 
 And have vou then thei-e this writ. 
 
EJECTMSNT IN NEW JERSEY. 659 
 
 Witness Mercer Beasley, Esq., Chief Justice, at Trenton, the 
 tenth day of January, A. D. eighteen hundred and seventy. 
 
 Chaeles p. SMriH, Clerk. 
 
 The summons is required to be served in the same njanner as 
 declarations in ejectment were formerly served ; but it has been 
 held, that where, in ejectment, service of the summons was upon 
 the wife of defendant, " at the dwelling-house on said premises," 
 without stating it to have been the dwelling-house of the husband, 
 and it was evident by proof that the defendant had notice of the 
 service made by the sheriif at the dwelling-house in question, the 
 same will be deemed sufficient service ; although it was admitted 
 that the sheriff's affidavit, stating that he served the defendant 
 " with a true copy of said summons, by leaving said copy of said 
 summons with the wife of said James "White, at the dwelling- 
 house on said premises," did not fulfill the requirements of the 
 common-law procedure. Where the service is on the wife, it is an 
 indispensable part of the old formula, to show that the husband is 
 living with the wife, or to state some other circumstance which 
 will raise a reasonable presumption that the notice of the writ 
 served on the wife had been, or would be, communicated to him. 
 Hence, the affidavits of service on the wife, at the dwelling-house, 
 under the old practice, invariably allege that it was the dwelling- 
 house pf the husband. But, in the old practice, such omissions 
 are mere irregularities, which the courts, under ordinary circum- 
 stances, have always permitted to be amended, the object being 
 simply to afford satisfactory assurance that the tenant in possession 
 had, in point of fact, received the requisite intelligence of the suit. 
 Consequently, where the service of the declaration was not alto- 
 gether in the ordinary form, it has never been unusual to order the 
 service to stand, whenever it appeared that the tenant had been 
 substantially, though perhaps informally, notified, and it was clear 
 that he could not be surprised. From the proofs in the case before 
 the court, it was thought evident that the defendant had received 
 notice of the service made by the sheriff at the dwelling-house in 
 question, and under such circumstances a rule was ordered, that 
 the service of the summons should be deemed sufficient, and the 
 motion to quash the summons for defective service and return was 
 denied. {Derrickson v. White, 32 N. J. Law E. 137.) But an 
 affidavit of the service of the summons in ejectment, which states 
 
660 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 that the summons was served on the daughter of the tenant, but 
 does not show that such service was made on the premises in ques- 
 tion, is insufficient ; but such affidavit may be amended, if the facts 
 will warrant it, so that the service maf stand. {Den v. Fen, 12 
 K J. Law E. 321.) 
 
 The defendants named in the summons, or either of them, will 
 be allowed to plead to and defend the action, either jointly or 
 separately ; and the landlord of the tenant in possession, or other 
 proper person, will, by leave of the court or a judge, be admitted 
 to appear and defend the action in all cases where the same would 
 have been allowed under the practice at common law in the state ; 
 provided, the application therefor be made in twenty days after 
 the return day of the summons, or within such further time as may 
 be granted by the court or a judge, and five days' notice of such 
 application, and of the taking of affidavits to be used thereon, be 
 given to the plaintiff; and any person admitted to defend as land- 
 lord, in respect of property whereof he is in possession only by his 
 tenant, must state in his plea that he defends as such landlord, 
 and such person will be at liberty to set up any defense he was 
 allowed to set up at common law, and no other. (Laws of 1855, 
 eh. 96, § 48. Elmer's Dig. 641.) 
 
 The court will not permit a person to become a defendant in 
 the action of ejectment, unless he show a privity of interest sub- 
 sisting between him and the tenant in possession, when the action 
 was commenced, and that his title was, at that time, consistent 
 and connected with the possession of the tenant, and liable to be 
 divested or disturbed by a claim adverse to that possession ; 
 that is to say, he must show that he is the landlord of the defend- 
 ant or other proper person. {Den v. Fen, 13 N. J. Law E. 66. 
 Ben V. Fen, 11 ib. 185.) 
 
 The pleadings in the action of ejectment must be filed within 
 the time limited for filing the same in pei-sonal actions. (Laws 
 of 1855, ch. 96, § 49. Elmer's Dig. 642.) 
 
 The plaintiff must file his declaration within thirty days after 
 the day the summons ig, returnable. This is thought to be the 
 true construction of the forty-eighth and forty-ninth sections of 
 the practice act ; and the plaintiff is, therefore, bound to declare 
 within thirty days after the return day of the summons, on pain 
 of being non-prossed. {Lee v. Consoly, 26 N". J. Law E. 209.) 
 
EJECTMENT IN NEW JERSEY. 661 
 
 The declaration in ejectment must describe the premises claimed 
 Vrith the same certainty as the summons, and must state the time 
 vvhen the plaintiff's right to the possession thereof accrued, and 
 may contain several counts ; and if the landlord or other proper 
 person be admitted to defend the action, the plaintiff must de- 
 clare against him and the defendant named in the summons. 
 (Laws of 1855, ch. 96, § 50. Elmer's Dig. 642). 
 
 The form of the declaration in ejectment is prescribed by 
 statute, and may be substantially as follows : 
 
 New Jersey Supreme Court. Of the (here insert the date of 
 the summons), Mercer county, ss. A B, the plaintiff in this ac- 
 tion, by "W" II, his attorney, demands of D, the defendant 
 therein, the possession of the equal undivided one-fourth part of a 
 tract of land, with the appurtenances, situate in the township of 
 Hopewell, in said county, containing fifty acres, more or less, 
 bounded on the north by lands of E F, on the south by lands of 
 G H, on the east by the lands of J K, and on the west by lands 
 of L M. And the plaintiff says that his right to the possession 
 of the same accrued on the second day of April, A. D. eighteen 
 hundred and sixty-eight, and that tlie defendant wrongfully de- 
 prives him of the possession thereof, to his damage of one hundred 
 dollars. "W. H., Attorney for Plff. 
 
 If the landlord or other person is admitted to defend, state the 
 title of the court, and time of commencing the action, as in the 
 other case, and then proceed as follows : 
 
 Mercer county, ss. A B, the plaintiff in this action, by E F, 
 his attorney, demands of C D and R S, the defendants therein 
 (the summons having been issued against the said C D, and the 
 said R S having been admitted to defend), and then proceed as in 
 the other case to the end. 
 
 "Where the lease in the declaration was stated to have been 
 made on the 7th day of July, 1825, to hold from the 6th of July 
 then last past, it was held to mean the July of 1825, and not the 
 July of 1824, which would have been before the plaintiff's title 
 accrued. {Den v. Fen, 10 K. J. Law E. 102.) In a declaration 
 in ejectment, the time at which the plaintiff's right of possession 
 
662 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 is averred to have accrued must be at a time when the right 
 actually existed. The statute requires this, and the principal, if 
 not the sole, design of this requirement probably was, that, in an 
 action for mesne profits, the verdict should be conclusive evidence 
 of the plaintiff's right to the possession from the time specified in 
 the declaration ; in analogy to the rule which regarded a recovery 
 under the former practice in ejectment, conclusive evidence of the 
 plaintiff's title from the time of the demise laid in the declaration ; 
 that is from the time at which the plaintiff averred that his 
 right to the possession accrued. But if the time is laid erro- 
 neously, the declaration is amendable at the trial. ( Yreeland v. 
 Eyerson, 28 N. J. Law K. 205. And vide Den v. MoSJiane, 13 
 ib. 39.) 
 
 When the landlord, or other proper person, is admitted to 
 defend, he or they may join with the tenant in possession in the 
 defense, or may defend separately, and the defendants, or either 
 of them, may defend for a part only of the premises in question, 
 and when for a part, it must be described in the plea with the 
 same certainty as is required in the summons. (Laws of 1855, 
 ch. 96, §51.) 
 
 The form of the defendant's plea in ejectment is prescribed by 
 statute, and may be^ to the effect following : 
 
 NEW JERSEY SUPREME COURT. 
 
 C D. 1 
 
 ads. > In Ejectment, Plea. 
 A. B. ) 
 
 And the said C D, by E G-, his attorney, appears and defends 
 
 this action, and says that he is not guilty of the injury whereof the 
 
 said A B hath complained in his declaration, nor of any part 
 
 thereof, and of this he puts himself upon the country, and the said 
 
 A B doth the like. 
 
 R G, Attorney for Defendant. 
 
 If the tenant in possession defends only for a part of the prem- 
 ises, then, after stating the court and action, say : 
 
 And the said D, by R G, his attorney, appears and defends 
 this action as to a part of the premises claimed by the plaintiff in 
 his declaration, to wit, ten acres thereof, situate and described as 
 follows,' to wit ; and as to the part so defended for, he says that he 
 
EJECTMENT IN NEW JERSEY. 663 
 
 is not guilty of the injury whereof the said A B hath complained 
 in his declaration, and of this he puts himself upon the country, 
 and the said A B doth the like. 
 
 E G, Attorney for Defendant. 
 
 If the landlord defends separately, state the court and action as 
 in the other forms, and then say : 
 
 And R S, who is admitted to defend this action as landlord, by 
 J "W, his attorney, appears and defends the action, etc. (as in the 
 other forms according to the circumstances of the case). If any 
 other person than the landlord be admitted to defend, and defends 
 separately, state the court and the action as before, and then say: 
 And N O, who is admitted as a proper person to defend this action, 
 by J W, his attorney, appears and defends the action, etc. (as in 
 the other forms according to the circumstances-of the case). 
 
 If the landlord defends jointly with the tenant in possession, 
 state the court and action as before, and then say : 
 
 And the said D, together with R S, who is admitted to defend 
 this action as landlord, by J W, their attorney, appear and defend 
 the action, etc. (as in the other forms according to the circum- 
 stance of the case). 
 
 If any other person than the landlord be admitted to defend, 
 and defend jointly with the tenant in possession, then, after stating 
 the court and action as in the other eases, say : 
 
 And the said C D, together with N 0, who is admitted as a 
 proper person to defend this action, by S R H, their attorney, 
 appear and defend the action, etc. (as in the other forms according 
 to the circumstances of the case). 
 
 Under the pleas in the forms prescribed, the defendant may 
 give in evidence any lawful defense to the action, not inconsistent 
 with other provisions of the act. (Laws of 1865, ch. 96, § 55. 
 Elmer's Dig. 642.) 
 
 The plea of the defendant will, for the purposes of the action, be 
 construed as an admission that he was in possession of the prem- 
 ises for which he defends at the time of commencing the action, 
 (Laws of 1855, ch. 96, § 52. Elmer's Dig. 642.) 
 
664 LAW OF EJECTMENT A.SD ADVERSE ENJOYMENT. 
 
 "Where an action of ejectment is brought by one joint-tenant, 
 tenant in common, or coparcener, if the defendant files his plea, 
 and does not give notice that he defends as joint-tenant, tenant in 
 common, or coparcener, and does not admit the plaintiff's right 
 to a share of the pi-operty, but defends for the whole premises, it ia 
 an admission of ouster, a denial of the whole right of the plaintiflP, 
 and the plaintiff will recover whatever part his proof shows he is 
 entitled to. This is the rule at common law {Doe v. Prosser, Cow- 
 per's E. 218), and it is clearly so by the New Jersey statute. 
 {Brown v. Combs, 29 N. J. Law E. 36.) 
 
 If the premises in question be not described with suflScient cer- 
 tainty in the declaration or plea, the court, or a judge, may order 
 it to be amended so as to be so described, and if either party fail 
 to comply with such order, judgment may be entered as for want 
 of a declaration or plea, according to the circumstances of the 
 case. 
 
 If no plea be filed within the time limited, the plaintiff is en- 
 titled to a judgment that he recover possession of the premises 
 claimed in the declaration, upon which a writ of possession may 
 issue ; and he may also recover his costs by the same judgment, 
 and have execution therefor, including the costs on the writ of 
 possession, against the defendant named in the summons, which 
 execution for costs may be included in the writ of possession, and 
 be of the like nature as used when the common law procedure 
 was in full vogue in the state, provided that it appear by the affi- 
 davit of service of the summons that he was actually in possession 
 of the premises claimed, or some part thereof, at the time of such 
 service, and that the same was served personally upon him, or 
 some member of his family above the age of fourteen years, at 
 his dwelling-house, or place of abode ; and if it do not so appear, 
 then the plaintiff may recover his costs in an action for mesne 
 profits against the defendant named in the summons, the same as 
 when the common law procedure prevailed. 
 
 If a plea be filed limiting the defense to a part only of the 
 premises in question, the plaintiff will be entitled to a judgment 
 that he recover possession of the part not defended for, upon 
 which a like Avrit of possession may issue, and in such case he 
 may recover his costs in an action for mesne profits against the 
 defendant named in the summons, as at common law ; and when 
 a part only of the premises are defended for, the plaintiff may 
 
EJECTMENT IN NEW JERSEY. 665 
 
 enter a discontinuance of the action as to that part, and enter 
 judgment for the residue, without thereby becoming liable to pay 
 costs to the defendants, or any of them. 
 
 After issue joined in ejectment either party may demand in 
 writing of the other a bill of particulars of his claim or title to the 
 premises in question, which bill must include an abstract of such 
 documentary evidences of title as the party may intend to give in 
 evidence on the trial ; and if any such documents may by law be 
 recorded, it must also state where they are recorded, or if not 
 recorded, then it must include copies of such thereof as are in pos- 
 session of the party, with the name or names of the subscribing 
 witness or witnesses, if any; and such bill of particulars must be 
 delivered in twenty daj's after the same shall be demanded, or 
 within such further time as the court or a judgfe, on good cause 
 shown, may grant, and in default thereof no evidence of such title 
 shall be given on the trial, but the court or a jury may, upon good 
 cause shown, allow either party to serve an amended bill of par- 
 ticiilars ; and in all cases tlie evidence of title will be confined to 
 the matters contained in the bill of particulars. 
 
 After issue is joined in the action of ejectment, the parties must 
 proceed to the trial thereof, as in other actions ; and if the plaintiff 
 appears at the trial, and the defendant does not, the jury must 
 render a verdict of guilty against the defendant, without any 
 proof of title by the plaintiff; and if the defendant appear, and 
 the plaintiff does not, the plaintiff will be nonsuited ; if both par- 
 ties appear, the question at the trial will be, whether the plaintiff 
 or plaintiffs, or either, and which of them, is entitled to recover 
 the possession of the premises in question, and whether of the 
 whole or of part, and if of part, then of which part ; and if the 
 jury shall find the defendant guilty as to part onl_y, their verdict 
 must particularly specity such part ; and if a verdict be found for 
 the plaintiff or plaintiffs, or either of them, for the whole or a part, 
 judgment will be entered thereon, that he or they recover the pos- 
 session of the same, either in whole or in part, as the case may be, 
 with costs, upon which a writ of possessi'on may issue, and it may 
 include an execution for the costs, as at common law, or a separate 
 execution may issue for the costs. 
 
 If at the trial the title of the plaintiff shall appear to have existed 
 as alleged in the declaration, in such manner that the plaintiff or 
 plaintiffs, or one of them, was, at the commencement of the action, 
 84 
 
666 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 entitled to recover possession of the premises in question, or of some 
 part thereof, but sliall also appear to have expired at the time of 
 the trial, the plaiatiff or plaintiffs so entitled will, notwithstanding 
 such expiration, be entitled to a verdict, according to the fact that 
 he was so entitled at the commencement of the action, and to a 
 judgment accordingly, with his costs of suit ; and as to the prem- 
 ises claimed, the judgment will be, that the defendant go thereof 
 without day. 
 
 In ejectment, the prevailing party will, in all cases, except where 
 it is otherwise provided by the act, recover his costs of the other 
 party, and may have the like executions therefor as in personal 
 actions ex delicto. In case the action of ejectment is brought by 
 some one of several persons entitled as joint tenants, tenants in 
 common, or coparceners, any joint-tenant, tenant in common, or 
 coparcener, defending the action, may give notice with his plea, 
 that he defends as such, and admits the right of the plaintiff to an 
 undivided share of^the property (stating what share), but denies 
 any actual ouster of him from the property ; and such notice shall 
 be copied as a part of the circuit record, and recorded with the 
 pleadings; and upon the trial of such an issue, the additional 
 question whether an actual ouster has taken place, shall be tried ; 
 and if, upon the trial of the issue, it shall be proved that the 
 defendant is such joint-tenant, tenant in common, or coparcener 
 with the plaintiff, and no such actual ouster shall be proved, then 
 the plaintiff will be nonsuited, with costs ; but if it shall be proved 
 either that the defendant is not such joint-tenant, tenant in com- 
 mon, or coparcener, or that an actual ouster has' taken place, then 
 the jury must so lind by their verdict, and the plaintiff will have 
 judgment in accordance with the verdict, for the recovery of pos- 
 session and costs. (Laws of 1855, ch. 26, §§ 53-60, Elmer's Dig. 
 642, 643.) 
 
 The death of a plaintiff or defendant in ejectment, will not 
 cause the action to abate, but it may be continued ; that is to say, 
 in case the right of the deceased plaintiff shall survive to another 
 plaintiff, a suggestion may be made of the death, which suggestion 
 will not be traversable, but will only be subject to be set aside if 
 untrue, and the action may proceed at the suit of the surviving 
 plaintiff; and if such suggestion be made before the trial, then 
 the plaintiff will have a verdict, and recover such judgment as 
 aforesaid, upon its appearing that he was entitled to bring the 
 
EJECTMENT IN NEW JERSET. 667 
 
 action, either separately or jointly with the deceased plaintiff; 
 and in case of the death before trial of one, of several plaintiffs, 
 ■whose right does not survive to any other of the plaintiffs, if the 
 legal representatives of the deceased plaintiff shall not become a 
 party to the action, in the manner provided, a suggestion may be 
 made of the death, which will not be traversable, but only subject 
 to be set aside if untrue, and the action may proceed at the suit 
 of the surviving plaintiff for such share of the property as he is 
 entitled to, and costs. In case of a verdict for two or more 
 plaintiffs, if such plaintiffs die before execution executed by deliv- 
 ery of possesion thereupon, the other plaintiffs may, whether the 
 legal right to the propertj^ shall survive or not, suggest the death, 
 in the manner before stated, and proceed to judgment and execu- 
 tion for recovery of the possession of the whole of the premises 
 in question, to which the right of possession may be found by the 
 verdict, and the costs ; but some of these provisions will affect the 
 right of the legal representative of the deceased plaintiff, or the 
 liability of the surviving plaintiff to such representative ; and the 
 entry and possession of such surviving plaintiff, under such 
 execution, will be considered as an entry and possession on behalf 
 of such representative, in respect of the share of the premises in 
 question, to which he shall be entitled as such representative, and 
 the court may direct possession to be delivered accordingly. 
 
 In case of the death before trial of a sole plaintiff, or any one 
 of several plaintiffs whose right does not survive to any other 
 plaintiff, the legal representative of such deceased plaintiff may, 
 by leave of the court, enter a suggestion of such death, and that 
 he is such legal representative, and the action will thereupon pro- 
 ceed ; and the truth of the suggestion will be tried on the trial of 
 the action, together with the title of the deceased plaintiff; and 
 such judgment must follow upon the verdict in favor of or against 
 the person making such suggestion, as provided with reference to 
 a judgment for or against such deceased plaintiff. 
 
 In case a sole plaintiff die after a verdict in his favor and before 
 execution executed by delivery of possession thereon, judgment 
 will nevertheless be entered in his favor, and will have the same 
 effect as if entered in his lifetime ; and the court, upon suggestion 
 of such death, and application of the deceased representative of 
 the deceased plaintiff, may order that a writ issue for the delivery 
 to such representative of the possession of the premises recovered, 
 
668 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 and the same must be delivered accordingly, subject, however, to 
 such terms as the court may impose ; and the personal representa- 
 tives of such deceased plaintiff may have the like remedies for the 
 collection of the costs recovered by such judgment as they would 
 have upon any other judgment for money in favor of such deceased. 
 If, after a verdict in favor of a defendant, a sole plaintiff, or one 
 of several plaintiffs, die before judgment, the defendant will never- 
 theless be entitled to judgment as if no such death had happened; 
 and, in case of a sole plaintiff, the defendant may proceed for the 
 recovery of his costs in like manner as upon any other judgment 
 for money against such deceased ; and, in case of several plaintiffs, 
 the defendant may have execution against the surviving plaintiff 
 for his costs ; and if, after such verdict in favor of a defendant, 
 and before judgment, he should die, judgment will nevertheless 
 be entered in his favor, and have the same effect as if entered in 
 his life-time. , 
 
 In case of the death before judgment of one of several defend- 
 ants who defend jointly, a suggestion may be made of the death, 
 which suggestion will not be traversable, but only be subject to be 
 set aside if untrue, and the action may proceed against the sur- 
 viving defendant to judgment and execution ; but, if such death 
 happen before trial, the court, in their discretion, may order that 
 notice be given to the legal representative of such deceased de- 
 fendant to appear and defend the action within a time to be 
 limited by the court, the notice to be served in such manner as 
 the court may direct ; and, in case such representative appear and 
 plead, he must plead the same plea, and the same proceedings may 
 be taken against him as if he had been originally admitted to 
 defend the action ; and if no such order be made, or if one be 
 jnade and such representative do not so appear and plead within 
 the time so limited, and an affidavit be iiled of the due service of 
 such notice, then the plaintiff suggesting the death, in manner 
 aforesaid, may proceed against' the surviving defendant to judg- 
 ment and execution. 
 
 , In case of the death of a sole defendant, or of all the defendants, 
 before trial, or suggestion may be made of the death, which sug- 
 gestion will not be traversable, but only be subject to be set aside 
 if untrue, and the plaintiff will be entitled to a judgment for 
 recovery of the possession of the premises in question, unless some 
 other person shall appear and defend within the time to be ap- 
 
EJECTMENT IN NEW JERSEY. 669 
 
 pointed for tliat purpose by the order of the court, to be made on 
 the application of the plaintiff; and it is made lawful for the 
 court, upon such application, to order that the plaintiif be at 
 liberty to sign judgment within such time as the court may think 
 fit, unless the legal representative of the deceased defendant or 
 defendants shall within such time appear and plead to the action ; 
 and such order may be served in such manner as the court, under 
 the circumstances, may direct ; and, in case such person shall 
 appear and plead, he must plead the same plea, and the same pro- 
 ceedings may be taken against him as if he had been originally 
 admitted to defend the action ; and if no plea be filed within the 
 time limited, then the plaintifi', upon filing an afiidavit of the due 
 service of such order, will be at liberty to sign judgment pursuant 
 thereto. 
 
 In case of the death of a sole defendant, or of all the defendants, 
 after verdict against him or them, the plaintiif will nevertheless 
 be entitled to judgment as if no such death had taken place, and 
 to proceed by execution for the recovery of possession Avithout 
 suggestion or revivor, and to proceed for the recovery of the costs 
 in like manner as upon any other judgment for money against 
 such defendant or defendants. 
 
 In case of the death of one of several defendants, who defends 
 separately for a portion of the premises in question, for which no 
 other defendant defends, before trial, or after a verdict against 
 him, the same proceedings may be taken as to such portion as in 
 case of the death of a sole defendant, or the plaintiff may proceed 
 against the surviving defendant in respect of the portion of the 
 premises in question for which he defends. 
 
 In case of the death before trial of one of several defendants 
 who defends separately in respect of property for which a sur- 
 viving defendant also defends, it is made lawful for the court, at 
 any time before the trial, to order that notice be given to the legal 
 representative of such deceased defendant to ajjpear and defend 
 the action within a time to be limited by the court, the notice to 
 be served in such manner as the court may, under the circum- 
 stances, direct ; and in case such representative appear and j^lead, 
 he must plead the same plea, and the same proceedings may be 
 taken against him as if he had been originally admitted to defend 
 the action ; and if no such order be made, or if one be made, and 
 3uch representative do not so appear and plead within the time so 
 
670 LAW OF MJECTMENT AND ADVEESE ENJOYMENI: 
 
 limited, and an affidavit be filed of the due service of such notice, 
 then the plaintiflF suggesting the death, in the manner aforesaid, 
 may proceed against the surviving defendant to judgment and 
 execution. 
 
 If, after verdict, a new trial be granted, then, for the purpose 
 of preventing an abatement of the action, the same proceedings 
 may be had as if there had been no trial. 
 
 The plaintiff ma^' at any time discontinue tlie action as to any 
 or all of the defendants, upon payment of his or their costs; and 
 if one of several plaintiff's desires to discontinue, he may apply to 
 the court to have his name struck out of the proceedings, which 
 may be ordered upon sucli terms as the court may think just, and. 
 the action will thereupon proceed at the suit of the other plaintiff. 
 
 If one of several defendants, who defend separately for a portion 
 of the property, retracts his plea, and confesses the plaintiff's action 
 as to sucli portion, the plaintiff may, forthwith enter judgment, and 
 issue execution for the recovery of the possession of that portion, 
 and for the costs occasioned by the defense relating to the same, 
 and the action may proceed as to the residue : provided, that if any 
 other defendant defends for the same portion, then the plaintiff will 
 not be at liberty to issue execution for the recovery of the possession 
 of that portion until he has recovered a judgment against all the 
 defendants who defend therefor. (Laws of 1855, ch. 96, §§61-74-. 
 Elmer's Dig. 643-645.) Error may be brought in like manner as 
 in other actions upon any judgment in ejectment. (Laws of 1855, 
 ch. 96, § 75. Elmer's Dig. 645.) If the plaintiff in ejectment does 
 not offer evidence of the title sufficient to put the defendant upon 
 his defense, he cannot be prejudiced bj' any erroneous rule of the 
 court in regard to such defense, and cannot, therefore, upon a writ 
 of error, avail himself of such erroneous ruling as a ground for 
 reversal. But if the defects in the plaintiff's evidence be such as 
 might have been supplied upon the trial, had tlie objection been 
 there made and sustained, or if it does not clearly appear from the 
 bill of exceptions that the plaintiff cannot be prejudiced by the 
 erroneous ruling of the court in regard to tlie defense, the plaintiff 
 is entitled to avail himself of such errors as a ground for reversal. 
 {Den V. Turies, 25 K J. Law E. 633.) 
 
 Wiiere it appears that injustice has been done by the course of 
 the trial and verdict, and that the party has been deprived of the 
 protection of clear and important principles of law, the court will 
 
EJECTMENT IN NEW JEBSET. 671 
 
 set aside the verdict and order a new trial. {Boylan v. Meeker, 
 28 N. J. Law E. 274.) 
 
 The statute provides that in all cases where the defendant in 
 ejectment would be liable for mesne profits and damages, the 
 plaintiff may declare for and recover the same in the same action, 
 under such regulations, as to pleadings and proceedings, as tlie 
 justices of the supreme court may prescribe, which regulations are 
 applicable to actions of ejectment brought in the circuit court, as 
 well as in the supreme court; or, after a judgment in ejectment, 
 an action may be brought for the mesne profits and damages, 
 according to the former practice. (Laws of 1855, ch. 96, §76. 
 Elmer's Dig. 645, 646.) Under the old practice, as it prevailed in 
 New Jersey, the plaintiff in an action of ejectment might recover 
 mesne profits, on giving notice to tlie defendant that he meant to 
 proceed for them. This practice was tolerated to save the expense 
 of two actions, and it was declared that there was no legal reason 
 to prevent the plaintiff from recovering his mesne profits, and the 
 possession of his lands in the same action. {Battin v. Bigelow, 
 1 Peters' Circuit Court E. 452.) 
 
 On a motion to quash the writ in an action of ejectment, on the 
 ground that the defendant was not in possession of part of the 
 premises at the commencement of the suit, if the affidavit of the 
 sheriff does not contain any direct allegation of the fact, and it 
 appears from the evidence taken to be a case of doubt as to the 
 defendant's possession, the plaintiff, if no appearance is entered, 
 should be allowed to take judgment by default for the possession, 
 but not for costs; and- then, if an action is afterward brought for 
 mesne profits and costs, the question of possession will be an open 
 one, to be settled by the jury. {Derrickson v. WhiU, 32 N. J. 
 Law E. 137.) 
 
 A judgment in ejectment is held to be conclusive evidence of 
 the title of thp lessor of the plaintiff to mesne profits, accruing sub- 
 sequent to the day of the demise, during such time as the defendant 
 lias held the premises in question. {Den v. McShaiie, 13 N. J. Law 
 E. 35. And vide Aslin v. Parkin, 2 Burr. E. 665. Van Allen v. 
 Rogers, 1 Johns. Cases, 281.) 
 
 A judgment in an action of, ejectment is declared, by the 
 statute of New Jersey, to bo conclusive, as to the right of posses- 
 sion established by such judgment, upon the party against whom 
 it is recovered, and . upon all persons claiming from, through, or 
 
672 LAW OF EJECT3IENT AKD ADVERSE ENJOYMENT. 
 
 under such party, by title arising after the commencement of such 
 action ; provided, that if any person against whom such judgment 
 is recovered shall be, at the time of its recovery, an infant, mar 
 ried woman, idiot, or lunatic, the judgment will be no bar to an 
 action commenced by such person, or any one claiming from, 
 through, or under such person, within three years after the re- 
 moval of such disability. (Laws of 1855, ch. 96, § 77. Elmer's 
 Dig. 646.) 
 
 The statute declares that the several courts in which actions of 
 ejectment may be brought, or be depending, may exercise over 
 the proceedings therein, jurisdiction and control, within the pro- 
 visions of the act, so as to insure a trial of the title onlj', and of 
 actual ouster when neeessarj^, and for all other purposes for which 
 such jurisdiction might, under the old practice, be exercised, and 
 the courts are required to make such regulations concerning the 
 actions of ejectment as may be necessary to carry into effect the 
 intention of the act. (Laws of 1855, ch. 96, § 79. Elmer's Digest, 
 646.) 
 
 It will be observed that the statute of New Jersey, though quite 
 elaborate, has not changed the practice in the action of ejectment, 
 in any very essential particulars, from what it stood at the com- 
 mon law. The statute does little else than abolish the fictions 
 of the action, and conform the same to the real parties,, and re- 
 enact, and in some instances modify, the common law in respect 
 to the action ; and yet it was thought important tliat the pro- 
 visions of the statute be fully given in order to prevent any mis- 
 takes in practice which might otherwise arise. 
 
 Li Pennsylvania, the action of ejectment is commenced by the 
 service of a writ, Avhich is required to be in the form following : 
 
 (L. S.) county, ss. The commonwealth of Pennsylvania: 
 
 To the sheriff of said county, greeting: You are hereby com- 
 manded that you summon A B to appear before the judges of the 
 court of common pleas, in and for said county, to be holden 
 at , on the day of next, then and there to answer 
 
 to a certain complaint made by C D, that he, the said A B, now 
 hath in his actual possession a tract of land, situate in town- 
 
 ship, in the said county, containing acres or thereabouts, 
 
 bounded by lands of E F, G H, the right of possession or title to 
 which, he, the said C D, saith is in him (or them, as the case may 
 
EJECTMENT IK PENNSYLVANIA. 673 
 
 be), and not in the said A B, all ^vllicll the said C D averreth he 
 is prepared to prove before the court. Hereof fail not. "Witness, 
 J B, president (or judge, as the case may) of our said court, 
 at , the day of Anno Domini one thousand eight 
 
 hundred and . Attested, J M, Prothonotary. (Purdon's 
 
 Dig. 1700-1861, p. 364, § 1.) 
 
 It is sufficient to mention the county and township in the writ, 
 the number of acres, and the name or names of the persons who 
 own the adjoining lands. {Hawn v. Norris, 4 Binney's R. 77.) 
 But the statute requires the township to be mentioned in the writ, 
 and if the same is omitted the writ will be declared fatal on a plea 
 in abatement ; although the defect cannot be pleaded or taken 
 advantage of after the issue is joined in the case. {Lyons v. 
 Miller, 4 Serg. & Eawle's R. 279.) And where the writ in an 
 action of ejectment was indescriptive except by adjoiners, and 
 the verdict was general for the land described in the writ, the 
 judgment was reversed on the ground that the finding was too 
 vague to sustain it. {Hunt v. McFarland, 38 Penn. R. 69. But . 
 vide Ewing v. Alcorn, 40 ib. 492.) Still, the defendant may insist 
 on the writ pursuing the form prescribed by the act, but he must 
 take the objection at an early stage of the proceedings. A defect 
 in form will be cured by verdict, provided the description of the 
 land is sufficiently certain to siipport the judgment. {Fisher v. 
 Larick, 7 Serg. & Eawle's E. 99. Lyons v. Miller, 4t Serg. & 
 Eawle's E. 279.) 
 
 The cases in which the action of ejectment may be brought have 
 been given in a previous chapter. {Ante, ch. 3.) And the action 
 as between landlord and tenant has been heretofore explained, and 
 the statement need not be repeated here. {Ante, ch. 17.) 
 
 "Where any writ of ejectment is issued, and on the service 
 thereof it shall appear to the sheriff that other persons not named 
 in the writ are in possession of the premises, or part thereof, such 
 sheriff is required to add the name of sneh person or persons to 
 the writ, and serve the same, and, on return thereof, the prothono- 
 tary must enter such additional defendants to the action, and they 
 will be made parties thereto ; and, in case of any of the defend- 
 ants not appearing, on motion to the court, and on affidavit of the 
 sherilf or other officer having served the said writ, stating the 
 manner in which the said service was made, and on the same 
 85 
 
674 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 being deemed by the court a service agreeably to law, jndgraent 
 may be entered by default for such part as lie is possessed of; and 
 a writ of possession may issue upon such judgment, and the action 
 may proceed to trial for tlie residue against the other defendant or 
 defendants ; and the return by the sheriff of having served any 
 such writ on the defendants marked served by him is made evi- 
 dence of such defendant or defendants being in actual possession 
 of the premises or part thereof. (Purdon's Dig. 365, § 5.) 
 
 Where a statement in ejectment against one defendant was filed 
 before the first term, and afterward tlie sheriif, according to the 
 command of his writ, summoned as defendant another person 
 found in possession, the court held, that the statement was right, 
 and that, if the name of the other defendant sliould be added, it 
 might be done after verdict '5ind judgment below, and the supreme 
 court, on error, would consider it as done. {Irish v. Scovil, 
 6 Einn. R. 55.) 
 
 For the purpose of a writ of error, the sheriff's return is con- 
 clusive evidence that the original writ was served on the defend- 
 ants; and though the statute allows judgment by default to be 
 signed in ejectment only where the return has been verified by 
 the sheriff's affidavit, it seems to be required only for that par- 
 ticular end. A judgment by default in such case will not be 
 opened after the time for a writ of error has elapsed. {Canvp v. 
 Wells, 11 Penn. E. 207.) The return of the sheriff ordinarily is 
 regarded as only jprima facie evidence, and may be disproved ; 
 that is to say, the return is only prima facie evidence of the pos- 
 session of any defendant, whether his name is in the writ of eject- 
 ment, or be added by the sheriff; and such defendant may rebut 
 the return, by showing that he was not in possession. {Cooper v. 
 Smith, 9 Serg. & Eawle's E. 26. Dietrich v. Mateer, 10 ib. 151. 
 Gratz V. Bcnncr, 13 ib. 110. Eelfenstein v. Leonard, 50 Penn. 
 E. 461. KirUand v. Thompson, 51 ib. 216.) 
 
 In any action of ejectment brought by a vendor to enforce the 
 specific performance of the agreement against the vendee or ven- 
 dees, or persons claiming under him or them, for land upon which 
 there is no person residing, the writ may be served on the vendee 
 or vendees, or persons claiming under them, and if such vendee or 
 person claiming as aforesaid cannot be found by the sheriff of the 
 proper county, then, and in that case, the court, after the return 
 day of the writ, may, on motion of the plaintiff or his attorney, 
 
EJECTMENT IN PENNSYLVANIA. 675 
 
 grant a rule on tlie defendant (describing the premises) to appear 
 and plead, which rnle must be published sixty days before the 
 return day thereof,i in one newspaper of the county in which the 
 action is brought, to be inserted at least three times, and if no 
 proper person shall appear to defend against the action, the court 
 on proof of such publication will, on motion in open court, at the 
 stated term, give judgment by default ; but in case the vendee or 
 purchaser, or person claiming under him, shall appear, the court 
 must cause the person, or his legal representatives so claiming 
 under the vendee or purchaser, to be made defendant, and the 
 cause will then be proceeded in and tried with the same eifect as 
 if there were an actual occupation of the land, and regular service 
 on the defendant.* And any person wishing to bring an ejectment 
 for land on which no person resides, and which lands have been 
 Bold for taxes, may bring his action, and serve the writ on the 
 person wlio purcliased the said lands ; and if such person cannot 
 bs found in the proper county, then the court, after tiie return day 
 of tlie writ, may, on motion of the plaintiff or his attorney, grant a 
 rule on the defendant, describing the premises, to appear and 
 plead, which rule must be published for sixty days successively, 
 before the return day thereof, in a weekly or daily newspaper of 
 the proper county ; a,nd if no person appears, then the court, on 
 proof of the publication, will, on motion in open court, at the 
 stated term, give judgment by default ; but when the purchaser 
 appears, or some person claiming under him, the court must cause 
 the person, or his legal representative so claiming under the 
 purchaser, to be made defendant, and the cause will be proceeded 
 in and tried on the respective titles of tlie parties, as fully as if 
 there was an actual occupation of the land. So, also, any person 
 wishing to bring ejectment for land elai'med adversely to him by 
 any person or corporation, not resident or being within the county 
 where such land lies, may bring his action, and serve the writ 
 on any person within the county, having' charge or superintend- 
 ence of the land in behalf of, or as agent of, such party claiming 
 adversely, provided, that before any trial or judgment shall be 
 had in such suit, it sliall be made to appear to the satisfaction of 
 the court that the defendant has had notice in fact of the suit in 
 time to appear and defend' it, and if the defendant be a corpora- 
 tion, this notice may be given to the president or other chief 
 officer. These provisions of the statute relative to the service of 
 
676 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 writs of ejectment where ]ands are held adversely are made to 
 apply in all cases of vacant possession ; although actual notice 
 must be given, as in other cases. (Purdon's Dig. 365, §§ 6, T, 8, 9.) 
 
 The plaintiff is required, either by himself, his agent or 
 attorney, to file in the office of the prothonotary of the proper 
 county, on or before the first day of the term to which the process 
 issued is returnable, a description of the land, together with the 
 number of acres which he claims and declares that the title is in 
 him ; and the defendant is required to enter his defense, if any he 
 has, for the whole or any part thereof, before the next term, and 
 thereupon issue will be joined. (Pardon's Dig. 366, § 10.) It lias 
 been held, however, that if the yrcBcipe contain a sufficient 
 description of the land, it is not necessary tcf file another under 
 this provision of the statute. (CahAll v. Burn, 6 Bin. E. 99.) And 
 it has be6n held that the recital after a statement of the names of 
 the plaintifis in ejectment, "heirs at law of A," does not confine 
 them to their title as his heirs. {Magill v. Swearingen, 10 Penn. 
 E. 497.) 
 
 The provision of the statute requiring the defendant in eject- 
 ment to enter his defense for the whole or any part of the land 
 claimed was soon found inexpediept as a system of practice ; and 
 a subsequent act of the legislature introduced a substitute for it, 
 by declaring that the plea in ejectment shall be, not guilty ; 
 thereby reducing the issue to one simple plea, adapted to the trial 
 of the merits, with more facility and certainty. (Act of April 
 13, 1807, § 4, Dunlop, 255.) And it is held that, on the plea of not 
 guilty, the merits can be fully and fairly tried, and the defendant 
 can take defense on the trial as to the whole or any part of the 
 land, on any ground which is available to him in law ; and it is 
 now held to be the proper plea or defense in ejectment, where the 
 merits are to be put in issue ; though there may still be a plea 
 in abatement, or perhaps something tantamount, in case of an 
 extraordinary emergency. The regular plea in ejectment, there- 
 fore, is not guilty ; what is called a disclaitner, which is sometimes 
 improperly entered on the record, is inappropriate to the action. 
 {Zeigler v. Fisher's Heirs, 3 Penn. E. 365. And vide West v. Strode, 
 13 ib. 433. McCanna v. Johnston, 19 ib. 434. Kirkland v. Thomp- 
 son, 51 ib. 216.) Under the present practice in ejectment, a formal 
 joinder of issue is not necessary. Immediately on the plea oinot 
 guilty being put in, issue is considered as joined. It is not neces- 
 
EJECTMENT IN PENNSYLVANIA. 677 
 
 sary even to plead the statute of limitations in ejectment. The 
 benefit of the act is secured to the defendant by his plea of not 
 guilty. {Gallagher v. McHfutt, 3 Serg. & Eawle's R. 409.) As 
 before stated, the defendant in ejectment may plead in abatement ; 
 for example, that there is no such person in existence as the 
 plaintiff; but such plea cannot be put in after a plea in bar, nor 
 after a general imparlance. {Campbell v. Galhraith, 5 Watts' R. 
 42S. Lyons v. Miller, 4 Serg. «fe Rawle's E. 280. Zeigler t. 
 Fisher's Heirs, supra.) And yet it is held that, under the plea of 
 not guilty, the defendant may prove that the plaintiff was dead 
 at the time of the institution of the suit. {Patterson v. Brindle, 9 
 Watts' R. 98.) And it has been held that in ejectment the general 
 issue plea is not guilty, and that under it, coverture or any other 
 available defense may be taken. {Black v. TricTcer, 52 Penn. R. 
 436.) But it has been decided that, where a plaintiff in ejectment 
 has filed a description of the premises he sues for, either in his 
 prcBcipe, or afterward, it is the duty of the defendant, if he does 
 not mean to take defense for the whole premises, to file with his 
 plea a description of that part of the premises for which he takes 
 defense. Such a special defense operates as a disclaimer of posses- 
 sion, or claim to whatever land is outside of the boundaries desig- 
 nated by the defendant, narrows the issue to the real point of con- 
 test, and averts from the defendant a liability for costs which other- 
 wise might attend a plaintiff's recovery of the undisputed part of 
 tlie premises. But where a defendant pleads the general issue in 
 ejectment, and files no specification of the extent to which ho 
 means to defend, he must be understood as defending for the 
 whole premises described in the writ. {Ilill v. Hill, 43 Penn. R. 
 521.) In case the tenant or defendant in ejectment is proved to 
 be committing waste or destruction of or on the premises claimed, 
 a writ of estrepement may issue to prevent the same, almost as a 
 matter of course, and without motion to the court, by the pro- 
 thonotary. (Purdon's Dig. 366, § 11.) 
 
 It is provided by statute tliat no writ of ejectment shall abate, 
 by reason of the death of any plaintiff or defendant, but the per- 
 son or persons next in interest may be substituted in the place of 
 the plaintiff or defendant who shall have died pending the writ. 
 (Pardon's Dig. 366, § 12.) Under this provision, it has been held 
 that the devisee of a trustee may bo substituted ; and also that if 
 a tenant in tail institutes ejectment for land, and diea pending- 
 
678 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 the suit, tlie child and next heir in tail is such "person next in 
 interest " as may be substituted as the party plaintiff. {Shoe- 
 maker V. HvffnagU, 4 Watts & Serg. K. 437.) 
 
 When the title of a plaintiff in ejectment to lands may have 
 been changed, by sale or assignment, after action brought, the 
 suit will not be affected thereby ; but the purchaser or assignee 
 maj' prosecute the action, and, the verdict and judgment vcill inure 
 to hiin, in the same manner that they would have inured to the 
 plaintiff if no sale or assignment had taken place, and the. pur- 
 chaser of real estate in controversy may be substituted on record 
 by a motion in open coiirt. (Laws of 1850, p. 591. Purdon's 
 Dig. 366, § 13.) And the name of a paity to a suit may be 
 changed where it appears to the court that a mistake or omission 
 in the name or names has been made. (Laws of 1852, p. 574.) 
 
 An ejectment was brought in 1821 in the name of William Cook. 
 There were two persons of that name, the first of whom, who was 
 the father of the other, died in 1817. In 1844 the defendant 
 pleaded " not guilty, and the death of the plaintiff before impetra- 
 tionofwrit." To this plea there was no replication. In June, 1846, 
 " death of plaintiff suggested, and William Cook, executor, substi- 
 tuted." In 1846 the latter conveyed the premises; it was held 
 that though the record might perhaps be amended, yet, accoi'ding 
 to it, the person meant as plaintiff was the father; and as he died 
 before the institution of the suit, it could not be sustained ; that 
 if William Cook, the son, was the equitable as well as legal owner 
 of the land, his conveyance after suit was equivalent to a discon- 
 tinuance of the suit; that if the defendant had title by the statute 
 of limitations at the time of the legal discontinuance of the suit in 
 1846, he could not be deprived of such title by the act of 26tli 
 April, 1850, permitting alienees to be substituted ; that such act 
 does not operate retrospectively as to a title perfected by lapse of 
 time before its passage; and that whether or not the defendant was 
 a mere trustee, the declaration of trust alleged to exist not being 
 furnished the court, it could not determine whether any substitution 
 could be made of persons as defendants under the act of 24th March, 
 1818, relative to trusts. {Morford v. Cook, 24 Penn. E. 92.) 
 
 In actions of ejectment a nonsuit may be entered against one of 
 several plaintiffs, and a verdict and judgment in favor of the others. 
 And where two verdicts shall be given in succession for the plaintiff 
 or defendant in any writ of ejectment between the same parties, 
 
EJECTMENT IN FENNSTLVANIA. 679 
 
 and judgment rendered thereon, no new ejectment can be brought. 
 But where there may be verdict against verdict between the same 
 parties, and judgment thereon, a third ejectment may be brought, 
 and the verdict and judgment thereon will be final and conclnsive, 
 and bar the right ; but where the action of ejectm'ent is brought to 
 enforce the payment of purchase-money, wherein time becomes of 
 essence in the finding of the jury, or in a judgment by confession, 
 by fixing the time of such payment, one verdict and judgment 
 thereon, unreversed, is conclusive. (Purdon's Dig. 366, 367, 
 §§U, 15, 16.) 
 
 In all legal actions of ejectment, wherein there has been one 
 vei'dict and final judgment, or verdict and judgment against ver- 
 dict and judgment, between the same parties, and the party or 
 parties, his or their heirs, or assigns, remaining in possession of 
 the premises, the title to which is in controversy, shall be desirous 
 of settling the same, it is made .lawful for such party or parties 
 so in possession to enter a rule upon the adverse party claiming 
 title to such premises, requiring him or them to commence his or 
 their second or third action of ejectment, as the case may be, 
 within two years thereafter, or show cause why the same cannot 
 be so brought ; which rule must be entered of record in the case 
 last tried between the parties, and served and returned by the 
 sherifi" as writs of summons are served and returned. And if the 
 party or parties upon whom the rule shall be served shall fail to 
 appear and show cause why the action should not be brought 
 within two years after such service, it is made the duty of the 
 court to enter judgment, and make the rule absolute against the 
 party so failing ; which judgment will be final and conclusive 
 between the parties, their heirs and assigns, in the same manner 
 as a second or third verdict and judgment between the same par- 
 ties would be if regularly rendered upon trial. (Laws of 1864, 
 No. 961.) 
 
 It has been held that one trial and judgment in an ejectment to 
 enforce or rescind a contract for the sale of land is conclusive of the 
 rights of the parties, whether the judgment was entered in the ver- 
 dict of a jury or on an award of arbitrators. The efficacy of the 
 proceeding is in the judgment, and not in the mode of arriving 
 at it. {Seitsinger v. Ridgway, 9 "Watts' E. 496. Aurick v. Oyler, 
 25 Penn. E. 506 ) Though one verdict and judgment in ejectment 
 upon an equitable title is conclusive between the parties, and a bar 
 
680 LAW OF EJECTMENT AND ADVERSE ENJOYMENT, 
 
 to any subsequent ejectment for the same land, yet, in order to 
 have this effect, the judgment upon the verdict must have been 
 regularly entered on the record ; it is not enough that the jury fee 
 "was paid after verdict, and 'an entry thereof indexed in the lien 
 docket. The lien docket is not the record of judgments, but only 
 their essential index ; and the entry in the lien docket does not 
 make the judgment, but only refers to one supposed to be already 
 made. {Ferguson v. Staver, 40 Penn. E. 213.) And the rule 
 that one verdict and judgment on an equitable title is conclusive 
 between the parties, and a bar to any subsequent ejectment for the 
 same land, applies only where the action is to be regarded as a bill 
 in equity and not as a possessory ejectment at common law. {Tay- 
 lor V. Abbott, 41 Penn. K. 352.) So also, in order to give the judg- 
 ment the effect to conclude the parties, it must appear distinctly 
 that the equitable title was directly in issue and decided upon. 
 {Meyers v. Hill, 46 Penn. K. 9.) 
 
 In actions of ejectment, where the defendant or defendants shall 
 have neglected or refused to appear and plead on or before the 
 next term after that to which the original process was made 
 returnable, or having appeared, and then withdrawn such appear- 
 ance, if the process shall have been duly served, the court may 
 direct a plea to be entered for the defendant or defendants, and 
 the case will proceed to trial and judgment as in other cases ; 
 provided the writ shall have been served on the party actually 
 claiming title. And in all cases of eviction, after return of an 
 execution, the court is required to award alias and pluries writs 
 of habere facias possessionem. (Purdon's Dig. 367, §§ 17, 19.) 
 
 In all actions of ejectment against two or more persons, any of 
 the defendants will be competent as a witness for either plaintiff 
 or defendant as effectually as if not made a party to the record ; 
 provided that it shall appear to the court, upon the trial, that the 
 party so offered as a witness has disclaimed, upon the record, all 
 title to the premises in controversy at the time of the action 
 brought, and paid into court the costs already accrued, or given 
 security for the payment thereof, at the discretion of the court. 
 (Laws of 1867, No. 30.) 
 
 In the statutory action of ejectment in Pennsylvania, mesne 
 profits may be recovered. {Dawson v. McGill, 4 "Wliarton's E. 
 230.) But it is held that the legal right of action for the mesne 
 profits of lands, which accrued during the pendency of an action 
 
EJECT3TENT IN DELAWARE. 681 
 
 of ejectment, is lost by the death of the defendant after the recov- 
 ery in ejectment had, and that the action will not lie against his 
 personal representatives. Although the legal right of action for 
 the recovery of the mesne profits of lands, which accrued during 
 the pendency of an action of ejectment, survives, where the 
 plaintiif dies after a recovery is had in the action, and the action 
 for such mesne profits is properly brought, in the name of his heir, 
 at common law. {Means v. Presbyterian Church, 3 Penn. K. 93. 
 Harper v. Whitalier, 5 "Watts' R. 474 Bard v. Nevin., 9 ib. 328.) 
 
 A defendant who quits the premises during suit is not liable for 
 mesne profits accrued afterward. {Mitchell v. Frudley, 10 Penn. 
 R. 198.) And, in trespass for mesne profits after judgment in 
 ejectment, the plaintiff can recover only for what accrued within 
 six years previous to the commencement of the action ; for all 
 rents, issues and profits accruing previously thereto, the statute of 
 limitations is a bar. {Hill v. Meyers, 46 Penn. R. 15.) 
 
 After judgment in ejectment and writs of habere facias posses- 
 sionem issued, it is the duty of the sheriff to execute the writs 
 by ejecting the defendant with his family ; and the wife canniiot 
 prevent it by setting up title in herself, as it was the duty of the 
 husband to have defended his possession upon her title. {Johnson 
 V. FalleHon, 44 Penn. R. 466.) 
 
 It may be added that the practice in bringing the action to 
 trial, and bringing writ of error in the action of ejectment, is 
 the same as in other actions. On error, if the testimony is not 
 brought up by bill of exceptions, it should be certified to be cor- 
 rect by the judge who tried the cause; the practice of counsel 
 making different presentations of the evidence, is held to be erro- 
 neous. {Burford v. McGue, 53 Penn. R. 42T.) 
 
 In the state of Delaware, the only provision of the statute in 
 respect to the action to recover real property is, that the legal 
 title to lands, or to any tenements whereon entry can be made, 
 may be tried in an action of ejectment ; and that no objection 
 shall be made to the form of action, or to the right of the 
 lessor of the plaintiff to make the demise, if he could recover the 
 premises in any form of action. The statute further provides that 
 if a tenant, holding under a demise, be served with a declaration 
 in ejectment, his landlord, upon entering into the common rule, 
 shall be admitted defendant with the tenant in such ejectment. 
 If the tenant refuse to appear, and the landlord apply to be ad- 
 86 
 
682 LAW OF EJECTJIENT AND ADVERSE ENJOYMENT. 
 
 mi'tted, judgment will be entered against the casual ejector, -with 
 stay of execution subject to the order of the court ; and the land- 
 lord, on entering into the common rule, and admitting on record 
 that he is and, at tlie time of the commencing the action, was in 
 possession of the premises mentioned in the declaration, or a,r\j 
 described part thereof for wliich he defends, must be admitted 
 defendant. (Eev. Code, 1852, ch. 119.) 
 
 It would seem that the action to recover the possession of real 
 property in Delaware, is the common law action of ejectment, 
 and that it is prosecuted, in the main, according to the form of 
 the common law. It has been held in conformity with the mle at 
 common law, that the demise must always be laid in the declara- 
 tion after the title of the lessor of the plaintiff accrued. {Doe v. 
 Boe, 1 Harr. R. 464.) So also the courts of Delaware hold in 
 accordance with the general rule at common law, that a recovery 
 in ejectment is not conclusive in any other ejectment; and it was 
 held that the rule would apply, though the recovery was by con- 
 fession of judgment. {Hawkins' Lessee v. Hays, 3 Harr. E. 489.) 
 Eut it is held that an award upon a reference in an action of 
 ejectment is conclusive, and estops the plaintiff from bringing 
 anotlier action. {Porter's Lessee v. Matthews, 2 Harr. E. 30.) 
 
 It has been ruled that the plaintiff, in an action of ejectment, 
 cannot go out of his plot to prove the defendant's possession 
 of other lands, for the reason that the plot must be regarded as a 
 notice of the lands in controversy. {Andrews' Lessee v. Steam, 
 2 Harr. E. 50.) 
 
 So also it has been decided that if a party, after suffering judg- 
 ment by default in an action of ejectment, relinquishes or aban- 
 dons the possession of the premises, no length of possession given 
 to it will avail him in a second action of ejectment against him 
 for the same premises, althotigh the plaintiff did not enter into 
 possession on his abandonment of it. {Doe v. Stejphens, 1 Houston's 
 E. 31.) 
 
 Although the effect of a recovery in an action of ejectment is 
 not conclusive as to title ; yet the courts of Delaware hold that it 
 is evidence of the right of possession in the party recovering it, 
 at the time of the recovery. And it was held in the same case, 
 that a recital in a deed that the grantor had taken in the convey- 
 ance of the land to him, only fourteen acres, and no more, of the 
 premises in dispute, is evidence of itself of the fact admitted in 
 
EJECTMENT IN ORIO. 683 
 
 the recital, and as snch concludes the parties to the deed, and all 
 deriving title under it, from claiming any new land. {Doe v. 
 Howell, 1 Houston's R. 178.) And it has also been declared that 
 a judgment by default in a former action of ejectment between 
 the same parties, legally establishes the right of the plaintiff to the 
 possession of the premises in a second action of ejectment between 
 them for the same premises ; but unless it is followed by an entry 
 into possession, either by writ of possession or without writ, but 
 with the consent or by the surrender or abandonment of the 
 defendant, that such judgment can have no effect on the defend- 
 ant's possession, or upon the question of title, founded upon his 
 part, on an actual and uninterrupted adverse possession of twenty 
 years' continuance. {Doe v. Stevens, 1 Houston's K. 240.) The 
 cases in which the action of ejectment may be brought in the 
 state of Delaware, have been stated in a previous chapter. {Ante, 
 ch. 3.) 
 
 CHAPTER XXXIX. 
 
 THE ACTION FOE THE EECOTERY OF EEAL PEOPEKTT IN THE SEVEKAL 
 STATES — THE PEAOTIGE IN OHIO, MICHIGAN, INDIANA AND ILLINOIS. 
 
 In the state of Ohio the action to recover real property is called, 
 as often as otherwise, by the name of ejectment, although, by the 
 code of practice now in force in the state, the distinction between 
 actions at law and suits in equity, and the forms of all such actions 
 and suits formerly existing there, are abolished ; and in their place 
 they have but one form of action, called a civil action ; and, as a 
 general rule, every action must be prosecuted in the name of the 
 real party in interest. The action for the recovery of real property, 
 or of an estate or interest therein, is required to be brought in the 
 county where the land in dispute is situated, except that if the 
 property be an entire tract and' situated in two oi* more counties, 
 the action to recover the possession thereof may be brought in 
 either of such counties ; but if lands for which the action is 
 brought to recover the possession consists of separate tracts in 
 different counties, the possession of such tracts must be recovered 
 by separate actions brought in the counties where they are situated. 
 (2 R. S. ch. 87, tit. 1, § 3, tit. 4, §§45, 46.) 
 
684 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The action to recover real property, like all other actions in the 
 state, must be commenced by filing a petition in the office of the 
 clerk of the proper court, and causing a summons to be issued 
 tliereon. The plaintiflf must also file with the clerk a praecipe, 
 stating the names of the parties to the action, and demanding tliat 
 a summons issue thereon, which summons is issued by the clerk. 
 (2 E. S. ch. 87, tit. 5, §§60, 51, 52.) 
 
 The statute provides that, in an action for the recovery of real 
 property, it shall be sufficient if the plaintiff state in his petition 
 that lie has a legal estate therein, and is entitled to the possession 
 thereof, describing tlie same with such convenient certainty as 
 will enable an officer holding an execution to identify it, and that 
 tlie defendant unlawfully keeps him out of possession ; and it is 
 not necessary to state how the plaintiff's estate or ownership is 
 darived. But if tlie action is brought by a tenant in common of 
 real property, against a co tenant, tlie plaintiff must state, in addi- 
 tion to the above, that the defendant either denied the plaintiff's 
 right, or did some act amounting to such denial. (2 R. S. ch. 87, 
 §§ 126, 558, 500.) And in such action it is declared to be suffi- 
 cient, if the defendant in his answer deny, generally, the title 
 alleged in the petition, or that he withholds the possession, as the 
 case may be ; but if he deny the title of tl^e plaintiff, possession by 
 the defendant will be taken as admitted. When the defendant 
 does not defend for the whole premises claimed by the plaintiff, 
 he is required to describe in his answer the particular paTt for 
 which defense is made. (2 R. S. ch. 87, § 559.) 
 
 The statute also provides that in an action for the recovery of 
 real property, when the plaintiff shows a right to recover at the 
 time the action was commenced, but it ajDpears that his right has 
 terminated during the pendency of the action, the verdict and 
 judgment must be according to the fact, and the plaintiff may 
 recover for withholding the property. And the parties in an 
 action for the recovery of real property may avail themselves, if 
 entitled thereto, of the relief of the statutes in force for the relief 
 of occupying claimants of land. (2 E. S. ch. 87, §§ 561, 564.) 
 
 In actions for the recovery of real property brought in any 
 superior court in the state, the party against whom judgment is 
 rendered may at any time during the term at which judgment 
 is rendered demand another trial by notice on the journal, and 
 thereupon the judgment will be vacated, and the action will stand 
 
EJECTMENT IN OHIO. 685 
 
 for trial at the next term. No further trial can be had in such 
 action, unless for good cause shown, as in other actions. (1 E. S. 
 397. 57 Vol. Stat. 15. And vide 2 E. S. 1555.) 
 
 The cases in which an action may be brought in respect to real 
 property in Ohio have been stated in a previous chapter. {Ante, 
 ch. 3.) 
 
 Before the practice now in vogue in Oliio was adopted, a case 
 was before the supreme court of the United States in error to the 
 circuit court of the United States for the district of Ohio, in which 
 some principles of law were enunciated of a general application, 
 which may properly be noted ; namely, that the possession of a deed, 
 regularly executed, is, prima facie evidence of its delivery. Under 
 ordinar'y circumstances, no otlier evidence of the delivery of a 
 deed than the possession of it, by the person claiming under it, is 
 required. 
 
 The law knows of but one christian name, and the omission or 
 insertion of the middle name or of the initial letter of that name 
 is immaterial ; and it is competent for the party to show that he 
 is known as well without as with the middle name. 
 
 A deed of lands sold for taxes cannot be read in evidence with- 
 out proof that the requisites of the law which subjected the lands 
 to taxes had been compKed with. There can be no class of laws 
 more strictly local in their character, and which more directly con- 
 cern real property, than laws imposing taxes on lands, and sub- 
 jecting the lands to sale for unpaid taxes. The rule here stated 
 is general, though it may be changed by statute. {Gaines v. Stiles, 
 14 Peters' R. 322. And vide Holt 's Heirs v. Hemphill 's Heirs, 
 3 Ohio E. 232.) 
 
 The practice in the action in respect to real property is generally 
 about the same as in other actions, except as modified by the pro- 
 visions of the statute before stated. A large number of decisions 
 in ejectment cases have been made by the courts, which may be 
 found in the reports, a reference to which may be more or less 
 useful. It has been held, that in ejectment the plaintiff may 
 recover upon a possessory title alone, especially against a disseisor, 
 who shows no right at all, or none better. {Devacht v. Newsam,, 
 3 Ohio E. 57. Ludlow v. Barr, lb. 388.) But generally, to 
 recover in ejectment upon prior possession alone, the possession 
 must have been actual and notorious. {Ahram v. Will, 6 Ohio E. 
 164. Vide Ifewham v. Cincinnati, 18 ib. 323.) 
 
686 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 When a person is in possession of land, in pursuance of a con- 
 tract of purchase, and fails to comply with his part of the agree- 
 ment, the courts of Ohio hold that an action will lie against him 
 at the suit of tiie vendor, to recover the possession, without a pre- 
 vious notice to quit. {Baker v. Gittings, 16 Ohio E. 485. And 
 vide Showers v. Emery ^ lb. 294.) 
 
 It is weU settled, that where the defendant in ejectment lias 
 acquired the possession, honestly and peaceably, under color of 
 title, of the land in controversy, he may show an outstanding 
 title in a stranger, and it will be a good defense, except in those 
 eases wliere the plaintiff is entitled to the possession, although the 
 naked legal title maybe in another, as in many cases of trust. 
 {Fowler v. Whitman^ 2 Ohio State E. 270.) 
 
 It has been decided that a judgment in ejectment, until re- 
 versed for error, or made void by an adverse recovery in a subse- 
 quent suit, is of the same obligation as other judgments. {Ilinton, 
 V. MeNeil, 5 Ohio E. 609.) But in an action for the recovery of 
 real property, a former judgment or decree between the same 
 parties or their privies, and in respect to the same lands, where 
 such judgment or decree has the effect of a release only without 
 warranty, cannot estop the plaintiff from setting up a new and 
 independent title acquired subsequent to the rendition of the 
 former judgment or deci-ee. {Woodbridge v. Banning, 14 Ohio 
 St. E. 328.) 
 
 In an action for the recovery of I'eal property iinder the Ohio 
 Code of Civil Procedure, tried on appeal in the district court, the 
 losing party is entitled to a new trial, of course, in the same man- 
 ner as in the court below. In estimating the number of tibials to 
 which the party may be of right entitled in the district court, no 
 regard will be had to the number or the result of trials had in the 
 court below, and a motion for a new trial for cause, regularly 
 filed by the losing part}-, after verdict and before the actual entry 
 of judgment against him on the verdict, is a sufficient demand of 
 another trial and compliance with the statute requiring " notice 
 on the journal." When the causes for a new trial assigned in the 
 motion are deemed by the court to be insufficient, the order 
 awarding a new trial sliould, to furnish a basis on which to 
 determine the rights of the parties to subsequent trials, show that 
 it is awarded as matter of right under the statute, and not for the 
 causes assigned. {Marietta v. Emerson, 5 Ohio St. E. 288.) 
 
EJECTMENT IN JtUCHIGAN. 687 
 
 In a ease where the plaintiff filed a petition to recover the pos- 
 session of a village lot from the defendant, claiming to be seised 
 of the same in fee simple, and the defendant answered, simply 
 denying the plaintiff's seisin in fee, the court held, that after the 
 plaintiff established his legal title under a sheriff's deed, it was 
 not admissible for the defendant, under the issue in the case, to 
 show an equity in himself under a- parol contract with the defend- 
 ant in execution for the purchase of the lot, made prior to the 
 levy, sale on execution, and deed to the plaintiff, although ai'ter 
 the deed to the plaintiff from the sheriff, the defendant received a 
 deed in pursuance of the parol contract with the defendant in the 
 execution. {Stewart v. Iloag, 12 Ohio St. K. 623.) 
 
 "Where a party in possession of real property brings his action 
 against a party claiming an interest therein for the purpose of 
 determining such interest, neither party has a right to have the 
 issue joined in the action tried by jury ; but the issue. is properly 
 triable by the court, although the location of the boundary line 
 between the respective parties is the matter in dispute. {Elli- 
 tJiorpe V. Buch, 17 Ohio St. E. 72.) 
 
 The authorities are quite numerous in ejectment cases under 
 the old system in Ohio, hut it is unnecessarj', perhaps, to refer to 
 any more of tliem in this place. The action to recover the posses- 
 sion of real property in the state, may be brought in most cases 
 where the action of ejectment is sustainable at common law, with 
 a few additions provided by statute. 
 
 In the state of Michigan, the action of ejectment is retained 
 and may be brought in the cases referred to in a previous chapter, 
 subject to certain provisions of the statute. [Ante, ch. 3.) 
 
 In the action of ejectment, as prosecuted in Michigan, if the 
 premises for which the action is brought, are actually occupied by 
 any person, the actual occupant must be named a defendant in the 
 declaration ; if they are not so occupied, the action must be 
 brought against some person exercising acts of ownersliip on the 
 premises claimed, or claiming title thereto, or some interest 
 therein at the commencement of the suit ; and all persons claim- 
 ing any title to the premises adverse to that claimed by the 
 plaintiff, may, in all cases be made defendants in such action. 
 (2 Compiled Laws, ch. 134:, § 4.) "When lands are bid in for the 
 state at a tax sale, and it becomes necessary for a party having an 
 adverse claim to such lands, to bring an action of ejectment to 
 
688 LAW OF EJECTMENT AND ADVERSE ENJOtMENT. 
 
 recover the same, the officer having charge of the land in hehalf 
 of the state, may be defendant. (1 Comp. Laws, ch. 17, § 133.) 
 
 The action of ejectment in Michigan is commenced by the 
 filing of a declaration, entering a rule to plead, and serving of a 
 copy of the declaration and notice of the rule to plead, in the 
 same manner as in personal actions, except as hereinafter noted. 
 In the declaration the names of the real claimants are required to 
 be inserted as plaintiffs; and the use of fictitious names of 
 plaintiffs or defendants, and of the names of any other than the 
 real claimants and the real defendants, and the statement of any 
 lease or demise to the real plaintiff, and of an ejectment by a 
 casual or nominal ejector, are abolished. (2 Comp. Laws, ch. 134, 
 §§5,6.) 
 
 It is sufficient for the plaintiff to aver in his declaration, that on 
 some day therein to be specified, and which must be after his title 
 or right accrued, he was possessed of the premises in question, 
 describing them with such convenient certainty, by setting forth 
 the section or part of a section, township and range, or the num- 
 ber of the lot, or otherwise, that from such descriptitin possession 
 of the premises claimed may be delivered, and that being so 
 possessed thereof, the defendant, afterward, on some day to be 
 stated, entered into such premises, and that he unlawfully with- 
 holds from the plaintiff the possession thereof, to his damage, any 
 nominal sum the plaintiff may think proper to state. If the 
 plaintiff claims an undivided share or interest in any premises, he 
 must state the same particularly in his declaration. If the 
 action is brought for the recovery of dower, the declaration must 
 state that the plaintiff was possessed of the one undivided third 
 part of the premises, or has reasonable dower as widow of her hus- 
 band, naming him ; and in every other case the plaintiff must 
 state whether lie claims in fee, or whether he claims for his own 
 life, or for the life of another, or for a term of years, or otherwise, 
 specifying such lives, or the character of such term. In any case 
 other than where the action is brought for the recovery of dower, 
 the declaration may contain several counts, and several parties 
 may be named as plaintiff's, jointly in one count, and separately 
 in others. And all the provisions of law relating to the indorse- 
 ment of declai'ations as security for costs, and the liability of 
 indorsers in case of personal actions, commenced by declaration, 
 are made applicable to the action of ejectment. (2 Comp. Laws, 
 
EJECTMENT IN MICHIGAN. 689 
 
 ch. 134, §§ 7, 8, 9, 10, 11, 12.) If the premises claimed are 
 actually occupied, the declaration must be served by delivering a 
 copy thereof, with the notice of tlie rule to plead, to the defend- 
 ant named therein, who shall he in the occupation thereof, person- 
 ally, or by leaving the same with some person of proper age, at 
 the dwelling-house of such defendant, if he be absent. (2 Comp. 
 Laws, ch. 134, § 13.) 
 
 If the defendant, or any defendant named in such declaration, 
 shall not occupy the premises claimed, the declaration, provided 
 the same are unoccupied and unimproved, and notice must be 
 served on the defendant personally if he can be found within the 
 state, and such service may be made in any part of the state ; and 
 in case such defendant does not reside within the state, or cannot 
 be found therein, then, on proof by affidavit, of either of these facts, 
 the court may make an order for the appearance of sucli defendant 
 at some future day, not more than six months from the date thereof. 
 Such order must be published once in each week for six successive 
 weeks, in some newspaper to be designated bj' the court, or be per- 
 sonally served on such absent, concealed or non-resident defendant, 
 such publication to be completed, or such service to be made at 
 least twenty days before the time limited for the appearance of 
 such defendant. Upon filing the certificate of any sheriff in the ' 
 statcj or an affidavit of the due service of a copy of the declaration 
 and notice of the rule to plead, personally, on the defendant, or 
 upon filing affidavit of the due publication of such order, to be 
 made by tlie printer or proprietor of the newspaper in which the 
 same was published, or upon filing due proof of the service of such 
 order personally on such defendant within the time limited, then 
 the appearance of the defendant will be entered ; and in ease such 
 defendant shall neglect to plead within the time prescribed by 
 such rule or order, his default for not pleading may be entered, 
 (2 Comp. Laws, ch. 134, §§ 14, 16, as amended by Laws of 1861, 
 No. 222.) 
 
 A defendant in ejectment may, at any time before pleading, 
 apply to the court, or to any judge thereof, or circuit court com- 
 missioner, in vacation, to compel the attorney for the plaintiff to 
 produce to such court or officer his authority for commencing the 
 action in tlie name.of any plaintiff tlierein. Such application must 
 be accompanied by an affidavit of the defendant, that he has not 
 been served with proof in any way, of the authority of the attorney 
 87 
 
690 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 to use the names of the plaintiffs stated in the declaration. Upon 
 such application the court or officer must grant an order requiring 
 the production of such authority, and must stay all proceedings in 
 the action until the same be produced. Any written reqnest of 
 the plaintiff or his agent, to commence the action, or any written 
 recognition of the authority of the attorney to commence the same, 
 or any verbal authority, duly proved by the affidavit of such attor- 
 ney or other competent witness, is made sufficient presumptive 
 evidence of such authority. And if it shall appear that, previous 
 to such application by any defendant, he was served with the affi- 
 davit of the plaintiff's attorney, showing his authority to commence 
 such action, such application will be dismissed, and such defendant 
 will be liable for the costs of resisting such application, the pay- 
 ment of which may be compelled by attachment as in other cases, 
 which may be issued upon proof of disobedience to the order of the 
 court or officer directing the payment of such costs. (2 Oomp. 
 Laws, ch. 134, §§ 17, 18, 19, 20, 21.) 
 
 The defendant may demur to the declaration in ejectment as in 
 personal actions; or he must plead the general issue only, which 
 must be the same as in personal actions, and the filing and service 
 of such plea or demurrer will be deemed an appearance in the 
 cause, and upon such plea the defendant may give the same mat- 
 ter in evidence, and the same proceedings will be had as upon the 
 plea of not guilty in the action of ejectment, prosecuted as at com- 
 mon law. And upon such plea tlie defendant may give in evidence 
 any matter which, if pleaded in the writ or action of dower, would 
 bar the action of the plaintiff. (2 Comp. Laws, ch. 134, §§22, 23.) 
 
 It is made unnecessary for the plaintiff in an action of ejectment 
 to prove an actual entry under title, or the actual receipt of any 
 profits of the premises demanded ; but it is sufficient for him to 
 show a right to the possession of such premises at the time of the 
 commencement of the suit, as lieir, devisee, purchaser or otherwise. 
 And it is not necessary on tlie trial for the defendant to confess, 
 nor the plaintiff to prove, lease, entry and ouster, or either of them, 
 except if the action be brought by one or more tenants in common, 
 or joint-tenants, against their co-tenants, the plaintiff, in addition 
 to all other evidence which he may be bound to give, is required 
 to pi'ove on tlie trial of the cause that the defendant actually ousted 
 such plaintiff, or did some other act amounting to a total denial 
 of his right as such co-tenant. But this provision of the statute is 
 
EJECTMENT IN MICHIGAN. 691 
 
 not to be construed to impair, nor in any waj' affect, any of the 
 rules of evidence in force, in regard to the maintenance and defense 
 of the action. (2 Comp. Laws, ch. V6i, §§25, 26.) 
 
 If the action be brought against several defendants, and a joint 
 possession or claim of title of all be proved, the plaintiff will be 
 entitled to a verdict against all, whetlier they may have pleaded 
 separately or jointly. (2 Comp. Laws, ch. 134, § 27.) And where 
 tiie action is against several defendants, if it appear on the trial 
 that any of them, at the commencement of the suit, occupied or 
 claimed distinct parcels in severalty, or jointly, and that otlier 
 defendants possessed or claimed other parcels in severalty, or 
 jointly, all of which titles, possessions or claims were derived 
 from the same source, tiie jury in such case must state particularly 
 in their verdict tlie description of the parcel claimed by eacli of 
 said defendants, where the said verdict shall be for the plaintiff; 
 and in case the said several titles, claims or possessions were de- 
 rived from a different source, the plaintiff must elect at the trial, 
 and before tlie testimony shall be deemed closed, against which 
 he will proceed, and a verdict must be rendered for the defendants 
 not j>roceeded against. (2 Comp. Laws, ch. 134, § 28, as amended 
 by Laws of 1869, No. 78.) 
 
 If it be shown on the trial that all the plaintiffs have a right to 
 recover the possession of the premises claimed, the verdict in that 
 respect will be for tlie plaintiffs generally. If it appear that one or 
 more of tlie plaintiffs have a riglrt to the possession of the premises, 
 and that one or more have not sucli right, the verdict most specify 
 for which plaintiff' tlie jury find, and as to which plaintiff they find 
 for the defendant. If tlie verdict be for any plaintiff, and there 
 be several defendants, tlie verdict must be rendered against such 
 of them as were in possession of the premises, or as claimed title 
 thereto, at the commencement of the action. If the verdict be 
 for all the premises claiuTed, as specified in the declaration, it. 
 must in that respect be for such premises generally. If the ver- 
 dict be for a part of tlie premises described in the declaration, it 
 must particularly specify such part as the same shall have been 
 proved, with the same certainty as is required in the declaration, 
 in the description of the premises. And if the vej'dict be for an 
 undivided sliare or interest in the premises claimed, it must 
 specify such share or interest; and if for an undivided share in 
 a part of the premises claimed, it must specify such share, and 
 
692 LAW OF EJBCniENT AND ADVEBSE ENJOYMENT. 
 
 describe such part of the premises as before required. The ver- 
 dict must also specify the estate or right which shall have been 
 established on the trial, by the plaintiif in -whose favor it shall be 
 rendered, whether such estate be in fee, or for his own life, or for 
 the life of another, stating such lives, or whether it be a term for 
 years, or otherwise, and specifying the duration of such term. If 
 the right or title of a plaintiif in ejectment expire after the com- 
 mencement of the suit, but before trial, the verdict must be 
 entered according to the fact, and judgment must be rendered 
 that he recover his damages by reason of the withholding of the 
 premises by the defendant, to be assessed, and that as to the prem- 
 ises claimed, the defendant go thereof without day. (2 Comp. 
 Laws, ch. 134, §§ 29, 30.) 
 
 It will be observed that the action to recover real property in 
 the state of Michigan is prosecured substantially as the action of 
 ejectment was prosecuted under the Revised Statutes of New 
 York ; and the law governing the action is about the same in 
 each state. As a general rule, therefore, the decisions of the 
 courts of each state are alike applicable in both states. 
 
 In an action of ejectment for certain lands bid off at the annual 
 tax sale, judgment was rendered at the circuit in favor of the 
 defendant for the possession ; but, on a finding by the court that 
 some of the taxes on which fhe sale was based were illegal, judg- 
 ment was rendered in favor of the plaintiif for the entire amount 
 of said taxes and interest. Under the provisions of the law of 
 1865, in relation to lands conveyed by the auditor general, the 
 supreme court held the judgment to be erroneous, declaring that 
 the legislature has full power to correct any mere irregularity in 
 the proceedings for the assessment and collection of taxes author- 
 ized by law, but when the original tax was levied without any 
 authority of law, no subsequent legislation can make it a legal 
 demand. If any of these taxes were warranted by law, but irregu- 
 larly assessed, the circuit judge would have been justified by the 
 terms of the act of 1865 to render judgment therefor, but not 
 otherwise. {-Ilart v. Henderson, 17 Mich. ~R. 218.) 
 
 The person in actual possession of the premises claimed, if they 
 are occupied by any one, must be made defendant in the action 
 of ejectment to recover the possession thereof. Such was the rule 
 under the statutes of 1838, and the present statute is to the same 
 effect, {Lockwood v. Brake, 1 Mich, E. 14.) 
 
EJECTMENT IN INDIANA. 693 
 
 The action of ejectment is now forbidden by a mortgagee to 
 recover the mortgaged premises until the mortgage is duly fore- 
 closed by the provisions of the statute of 1843 ; but it is held 
 that the statute does not apply to mortgages previously given. 
 {Mundy v. Monroe, 1 Mich. E. 68. Blackwood v. Van Vleet, 11 
 ib. 252.) 
 
 The circuit courts of the state have power to order a change of 
 the venue in actions of ejectment for cause. {Campan v. Dewey, 
 9 Mich. R. 381.) And where, a claim is filed under the statute for 
 the value of improvements made by the defendant on the premises 
 in controversy, the case may be tried by the court without a jury, 
 if no jury be demanded. If the trial is had before the judge 
 without a jury, his finding of facts is in the nature and stands in 
 the place of a special verdict, and must be filed in writing before 
 any judgment can be entered. In these cases the plaintiff has his 
 election to take judgment for the possession of the premises sub- 
 ject to the obligation to pa}' for the improvements, or for the value 
 independent of the improvements. But he is bound by his election 
 once made. {Rawson v. Parsons, 6 Mich. K. 401.) 
 
 "Where a plaintiff in ejectment testified nnder objection as to 
 the fact of possession by a defendant and his deceased wife of cer- 
 tain premises, it was held, that, as the husband was then living, 
 and defending in his own right as well as of his said deceased wife, 
 the testimony did not fall within the object of the statute of 1861, 
 prohibiting a party from testifying in relation to matters which, 
 if true, must have been equ/iUy within the knowledge of such 
 deceased person. ( Wright v. Wilson, lY Mich. R. 192.) 
 
 Where a party was in full possession of certain real estate, the 
 record title to which was incomplete, and ejectment was brought 
 by several parties as to a portion of the same, the court held, that, 
 as the party had a clear right to file a bill to quiet his title to the 
 remaining lots, the question being the same a^ to all, it was proper 
 to enjoin the ejectment suit, and thus avoid multiplicity of suits, 
 and the questions in controversy be determined in one proceeding. 
 ( Woods V. Monroe, 17 Mich. R. 238.) 
 
 In the state of Indiana, an act was passed in 1852, by which the 
 distinction between actions at law and suits in equity, and the 
 forms of all such actions and suits, were abolished, and only one 
 form of action for the enforcement or protection of private rights', 
 and the redress of private wrongs, is now recognized in the state^ 
 
69 1 LAW OF EJECTMENT AND ADVERSE ENJOYMENT 
 
 and that is denominated a civil action ; and in every such action 
 the party compaining is known as the plaintiff, and the adverse 
 party as the defendant. (2 R. S. part 2, ch. 1, §§ 3, 2.) 
 
 The statute provides that any person having a valid, subsisting 
 interest in real property, and a right to the possession tiiereof, 
 may recover the same by action to be brought against the tenant 
 in possession ; if tliere is no snch tenant, then against the person 
 claiming tiie title or some interest therein. AVhenever it appears 
 that the defendant is only a tenant, the landlord may be substi- 
 tuted, reasonable notice thereof being given. (2 E. S. part 2, 
 th. 1, §§ 592, 593.) 
 
 The action to recover real property in Indiana is commenced, 
 like other actions, by filing in the office of the clerk a complaint, 
 and causing a summons to issue thereon. (2 E. S. part 2, ch. 1, 
 § 34. The plaintiff may unite several causes of action in the same 
 complaint where the action is to recover the possession of real 
 property, with or without damages, rents and profits for withhold- 
 ing thereof. (2 E. S. part 2, eh. 1, § 70.) 
 
 When the defendant is a non-resident, service maybe had upon 
 his agent for the property residing in the state, with the like effect 
 as thougli made upon the principal, or service may be had by 
 publication! as in other cases. (2 E. S. part 2, ch. 1, § 594.) 
 
 The plaintiff, in his complaint, must state that he is entitled to 
 the possession of the premises, particularly describing them, the 
 interest he claims therein, and that the defendant unlawfully keeps 
 him out of possession. The answer of the defendant must con- 
 tain a general denial of each material statement or allegation in 
 tiie complaint; under which denial the defendant will be permit- 
 ted to give in evidence every defense that he may have, either 
 legal or equitable. (2 E. S. part 2, ch. 1, §§ 595, 596, as amended 
 by acts of 1855, page 57.) The complaint of the plaintiff to recover 
 real property under the statute, may be in the following form : 
 
 A B states that he is the owner in fee simple (or for life, etc.), 
 and entitled to possession of a tract of land (or town lot). (Here 
 describe it), that C D now holds possession of the land without 
 right, and for past has unlawfully kept the plaintiff out of 
 
 possession, wliere^re he demands judgment for the recovery of 
 the land, and dollars damages, for being kept out of posses- 
 
 sion, and for other proper relief. 
 
EJECTMENT IN INDIANA. 69& 
 
 The defendant's answer in tlie action to recover real property, 
 may be in tlie following form : 
 
 The defendant answers the plaintiif's complaint herein, and 
 denies each and every statement and allegation therein contained. 
 
 As the practice now stands in Indiana, in actions to recover the 
 possession of real estate, all defenses are admissible under the 
 general issue. ( Woodruff v. Garner, 20 Ind. R. 174.) 
 
 Wlien the defendant makes defense, it is not necessary for the 
 plaintiff to prove his possession of the premises claimed. The 
 plaintiff cannot recfover for the rent and occupation of the premises 
 for more than six years next before the commencement of the 
 action. If tlie interest of the plaintiff expire before the time in 
 which he could be put in possession, he may obtain a judgment 
 for damages only, and where there are two or more plaintiffs or 
 defenda^uts, any one or more of the plaintiffs may recover against 
 one or more of the defendants, thepremises, or any part thereof, 
 or any interest therein, or damages according to the rights of the 
 parties ; butj^the recovery cannot be for a greater interest than 
 that claimed. (2 E. S. part 2, ch. 1, §§ 597-600.) 
 
 The court rendering the judgment at any time within one year 
 thereafter, upon the application of the party against whom judg- 
 ment is rendered, his heirs, or assigns or representatives, and upon 
 the payment of all costs, and of the damages, if the court so direct, 
 must vacate the judgment, and grant a new trial ; but onlj' one 
 new trial can be granted, unless for good cause shown. If the 
 application for a new trial is made after the close of the term at 
 which the judgment is rendered, the party obtaining a new trial 
 must give the opposite party ten days' notice thereof before the 
 term at which the action stands for trial. The result of the new 
 trial, if application therefor is made after the close of the term at 
 which the judgment is rendered, will in no case affect the interest 
 of third persons, acquired in good faith, for a valuable considera- 
 tion, since the former trial. But the party who, on such new 
 trial, shows himself entitled to the lands which have thus passed 
 to the hands of a purchaser, in good faith, may recover the proper 
 amount of damages against the other party, either in the same, or 
 in subsequent actions. (2 R. S. part 2, ch. 1, §§ 60J-60i.) In an 
 action to recover real property against a tenant, the judgment is 
 
696 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 made conclusive evidence against the landlord, -wlio lias received 
 notice as hereinbefore stated. (2 E. S. part 2, ch. 1 § 605.) 
 
 The statute provides that, in an action to recover real property, 
 the plaintiif must recover on the strength of his own title; and 
 the courts of the state had held tlie same rule before the statute 
 was passed. (2 R. S. part 2, ch. 1, § 006. Fldon v. J)oe, 6 Blackf. 
 E. 341.) 
 
 The court, on motion, and after notice to the opposite party, 
 may, for cause shown, grant an order allowing the party applying 
 therefor to enter upon the property in conti-oversy, and make 
 survey and admeasurement thereof for tlie purposes of the action. 
 The order must describe the property, and a copy thereof must be 
 served upon the owner or person having the occupancy and control 
 of the laud. (2 E. S. part 2, ch. 1, §§607, 60S.) 
 
 "When the plaintiif in an action of this nature is entitled to 
 damages for withholding, or using or injuring his property, the 
 defendant may set off the value of any permanent improvements 
 made thereon, to the extent of such damages, unless he prefers to 
 avail himself of the law for the benefit of occupying claimants. 
 In case of wanton aggression on the part of a defendant, the jury 
 may award exemplary damages. (2 E. S. part 2, ch. 1, §§ 609, 610.) 
 
 An action may be brought by any person, either in or out 
 of possession, or by one having an interest in remainder or 
 reversion, against another who claims title to, or interest in, real 
 property adverse to him, although the defendant may not be in 
 possession thereof, for the purpose of determining and quieting 
 the title ; and all the rules prescribed in respect to actions to . 
 recover real property must be observed in these cases, as far as 
 they are applicable. If in such cases the defendant disclaims, in 
 liis answer, any interest or estate in the property, or suffer judg- 
 ment to be taken against him without answer, the defendant will * 
 recover costs. (2 E. S. part 2, ch. 1, §§ 611-613.) 
 
 In an action by a tenant in common, or joint-tenant of real 
 property against his co-tenant, the plaintiff must show, in addition 
 to his evidence of right, that the defendant either denied the 
 plaintiff's right, or did some act amounting to such denial. (2 E. 
 S. part 2, ch. 1, § 614.) 
 
 There have been numerous decisions of the courts of Indiana 
 in respect to real actions, both under the old and the present 
 practice, which are more or less applicable to the remedy provided 
 
EJECTMENT IN INDIANA. 697 
 
 by the statutes now in force in the state, and which may prove 
 useful in construing their provisions. 
 
 A plaintiff in ejectment must recover, if at all, upon the 
 strength of his own title. A defendant, therefore, to protect his 
 own possession, is permitted to show, in bar of the plaintiff's 
 recovery, a subsisting outstanding title in a stranger, older than 
 the title of the plaintiff's lessor. {Connelly v. Doe, 8 Blaekf. E. 
 32J. Galhreath v. Doe, lb. 366.) But an execution debtor car,not 
 set up an outstanding title in a third person against a purchaser 
 at a sale under the execution ; neither can a person who comes into 
 possession under the debtor without title, or collusively; and, in 
 general, a claim or title which could not be set up by a person 
 while in possession, cannot be set up by another person who 
 comes into possession under him, to defeat tlie action of ejectment 
 brought by tlie person having a prima facie right to the prop- 
 erty. {Sherry v. Denn, 8 Blaekf. E. 542. Hdbson v. Doe, 4 ib. 
 487. Vide Doe v. Evans, 8 ib. 322. Morss v. Doe, 2 Ind. E. 65.) 
 
 The possession of real property is prima facie evidence of title. 
 A deed of bargain and sale of real estate, executed by an infant 
 for valuable consideration, is voidable but not void ; and an action 
 of ejectment for premises conveyed by the lessor while an infant, 
 commenced after his majority, and within a proper period, is a 
 valid avoidance of the conveyance ; but the grantee or tenant in 
 possession must be notified of the intention to disaffirm before the 
 commencement of the action. {Doe v. Abemathy, 7 Blaekf. E. 
 442.) And in an action of ejectment, it appeared that the defend- 
 ant had purchased the premises in question for a valuable con- 
 sideration of one of the lessors, who was a female under age, and 
 the grantee afterward married the other lessor. The defendant 
 had been in possession of the premises, under his purchase, for 
 several years after the marriage, and after the grantor's majorfty, 
 with the acquiescence of herself and husband. The court held, 
 that if the lessors might, under the circumstances, avoid the con- 
 veyance, still, unless notice of their intention to do so had been 
 given to the defendant, the suit could not be sustained. {Clawson 
 V. Doe, 5 Blaekf. E. 300.) 
 
 In an action of ejectment, it appeared that the land in contro- 
 versy was sold on a venditioni exponas issued upon a judgment 
 rendered in favor of A against B, an entry made by C, tiie lessor, 
 as replevin bail, and the same was purchased at such sale by 
 8Sc 
 
698 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 the defendant, long before the commencement of the action, the 
 rents and profits having first been ofiered for sale without eifect. 
 The defendant also produced the sheriff's deed to him. The conrt 
 held, that this evidence, showing a judgment, execution, sale and 
 deed, was sufficient, prima facie, to authorize a verdict in the 
 defendant's favor. {Roe v. Eoss, 2 Ind. E. 99. And vide Mercer 
 V. Doe, 6 ib. 80. Frakes v. Brown, 2 Blackf. E. 295.) 
 
 It has been held that, in an action to recover the possession of 
 real estate, under the Eevised Statutes of 1852, the defendant, by 
 admitting that he is the plaintiff's tenant, admits the plaintiff's 
 title, and* that sucli defendant cannot give evidence of an out- 
 standing title in a third person, under a general denial of the 
 allegations in the complaint. And further, that a defendant who 
 seeks to defeat a prima facie case made by the plaintiff, by proof 
 of an affirmative fact, must plead it. {MillhoUin v. Jones, 7 Ind. 
 IS 715.) And where in an action to recover the possession of 
 real estate, the defendant appears and pleads to the action, iiis 
 possession of the land described in the complaint is admitted, 
 under section 596, 2 Eevised Statutes, page 167, and hence evi- 
 dence of the boundaries of the land is irrelevant. The act of 
 1855 (Acts, 1855, p. 57) amending section 596, 2 Eevised Statutes, 
 page 167, was not intended to change this rule, or increase the 
 amount of evidence, but only to change the mode of pleading. 
 ( Voltz V. Newbut, 17 Ind. E. 187. And vide Doe v. Hall, 2 ib. 
 24. Doe V. midreth, Ib. 274.) 
 
 It is held in Indiana, that a person in possession of real estate, 
 under a contract of sale with the owner, is not liable to an action 
 of ejectment by the lessee of a subsequent vendee of such owner, 
 without a demand of possession. And it was decided in the same 
 case, that the omission to insei-t in a declaration in ejectment the 
 name of the defendant who appears to the action instead of the 
 casual ejector, cannot be assigned for error. {StacMouse v. Doe, 
 5 Blaclcf E. 570.) 
 
 The possession of real property by an ancestor raises a pre- 
 sumption that he was seised in fee, and is sufficient, prima facie, 
 to support an ejectment on the demise of his heirs ; and a joint 
 demise by several heirs of real estate is sufficient to support eject- 
 ment. In all cases, possession of real estate is held to be prima 
 facie evidence of title, and must succeed until evidence of prior 
 possession or higher evidence of title be produced. {Hohinoe v. 
 
EJECTMENT IN INDIANA. 699 
 
 Doe, 6 Blactf. E. 85. And vide Bdbcock v. Doe, 8 Indiana E. 
 110.) 
 
 It is held that a tenant at will can maintain the action of eject- 
 ment. (Eunn. Eject. 23, 24r.) And in the same case it is decided 
 that the appearance of a defendant, naming himself executor, when 
 admitted in ejectment instead of the tenant in possession, is no 
 evidence in the suit of the death of his alleged testator under 
 wliom he claims ; nor is his previous recover}', though so named, 
 in a ibrcible detainer against the plaintiff's lessor, any evidence. 
 And, further, that in an action of ejectment, the previous recovery 
 of the defendant against the plaintiff's lessor, in a forcible detainer, 
 is no bar to the suit. {Buntin v. Doe, 1 Blackf E. 26.) 
 
 The common law doctrine is, that tenants in common must in 
 general sever in real actions, unless in quare impedit, and in eject- 
 ment a joint demise vifould be improper. And in Indiana it is held 
 that one tenant in common may sue separately in ejectment for his 
 undivided share of the estate. In the same case it was held that 
 the claim of an occupying claimant for the value of his improve- 
 ments, on a recovery against him in ejectment, does not grow out 
 of anj' common law right, but is entirely of statutory origin. Fur- 
 ther, that the defendant in trespass for mesne profits, after a recovery 
 against him in ejectment, cannot plead in bar of the action that the 
 rents and profits do not exceed the value of his improvements, unless 
 Bitch value had been assessed under the direction of the court that 
 rendered judgment in the action of ejectment. {Chesroimd v. Cun- 
 ningham, 3 Blaclcf. E. 82.) But in trespass for mesne profits after 
 judgment in ejectment, the defendant, to prevent a recovery of 
 profits that accrued before service of the declaration in ejectment, 
 may prove that he had not qccupied the premises before such service. 
 ( Vance v. The Inhahitants of Congressional Township, 7 Blackf. E. 
 241.) In the action of disseisin damages can be recovered up to the 
 time (S" the trial. {Pendergast v. McCaslin, 2 Ind. E. 87.) 
 
 It is generally necessary in ejectment for the plaintiff to show a 
 right of jjossession in his lessor at the date of the demise, 'and at 
 the time the action was commenced. {Jackson v. Hughes, 1 Blackf. 
 E. 421.) But it is not a prerequisite to a recovery in ejectment 
 that the plaintiff should trace his lessor's title back to the govern- 
 ment : the legal right of possession is the subject of controversy in 
 the action — not the ultimate title to the land. In ejectment, not 
 barred by the statute of limitations, a prior peaceable possession 
 
700 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 under a claim of right will prevail against a mere intruder. The 
 defendant may show that the title of the plaintift''s lessor has expired 
 at the time the action was commenced, for the purpose of protect- 
 ing himself in the possession of the premises claimed. {Doe v. West, 
 
 1 Blackf. K. 133.) 
 
 Where a plaintiff traces title to a person in possession under a 
 deed, and to the same source from which the defendant derives 
 title, such person need not show a patent from the United States 
 to sustain his title. {Pierson v. Doe, 2 Ind. E. 123. Andmde 
 Applegate v. Doe. lb. 169.) 
 
 In ejectment on several demises of separate tracts of land, laid 
 in different counts, if there be proof of one count only, the verdict 
 should be in favor of the plaintiff on that count, and of the defend- 
 ant on the others. Eut if, in such a case, there be a general ver- 
 dict of guilty, judgment may be taken on the count proved, and a 
 nolle prosequi entered as to the others. {Fite v. Doe, 1 Blackf. 
 R. 127.) And in ejectment for an entire tract of land, any undi- 
 vided portion of it may be recovered. {Doe v. Abernathy, 7 Blackf. 
 E. 442.) An infant, having a title to land for which an action of 
 ejectment is brought, has a right to be admitted a defendant on the 
 usual terms ; and the court should appoint a guardian for him, in 
 order that he may be enabled to defend the suit. {Glass v. Doe, 
 
 2 Blackf. E. 293.) 
 
 It has been held that a recovery in an action of trespass, com- 
 menced before a justice of the peace, and, upon the title of the 
 land being put in issue, removed to a court having jurisdiction, 
 no judgment having been rendered touching such title further 
 than it might be supposed to enter into the determination of the 
 action of trespass, and no determination of that issue having been 
 necessary to enable the court to render the judgment, is no bar to 
 an action of ejectment. {Ilargus v. Goodman, 12 Ind. E. 629.) 
 
 If in ejectment there be a verdict and judgment for the defend- 
 ant, the judgment for costs must be entered against the nominal 
 plaintiff, not against the lessor. {Doe v. Owen, 2 Blackf. E. 452.) 
 
 This rule was declared when the action was prosecuted under 
 the old practice, and is of no importance under the present 
 practice, where none but the real parties are named in the action, 
 to recover real estate. 
 
 Provision is made by the statutes of Indiana, whereby an occu- 
 pant of lands having color of title, and in good faith has made 
 
EJECTMENT IN ILLINOIS. 701 
 
 valuable improvements thereon, and is afterward, in the proper 
 action, found not to be the rightful owner thereof, may recover 
 for such improvements, or take the land upon paying the affixed 
 value thereof; and when the defendant in an action to recover 
 real property institutes these proceedings, no execution can issue 
 to put the plaintiff in possession, until the provisions of the act 
 are complied with. (2 E. S. part 2, ch. 1 §§ 615-624.)* 
 
 In the state of Illinois, the action to recover real property is 
 denominated the action of ejectment. The cases in which the 
 action may be brought are enumerated in a previous chapter. 
 Ante ch. 3.) 
 
 The statute provides that no person shall recover in ejectment 
 unless he has, at the time of commencing the action, a valid, sub- 
 sisting interest in the premises claimed, and a right to recover the 
 same, or to recov-er the possession thereof, or of some share, interest 
 or portion thereof, to be proved and established at the trial. And 
 if the premises for which tlie action is brought are actually occu- 
 pied by any person, such actual occupant must be named defendant 
 in the declaration ; if they are not so occupied, the action must be 
 brought against some person exercising acts of ownership on the 
 premises claimed, or claiming title thereto or some interest therein, 
 at the comftiencement of the suit. 
 
 The action of ejectment is commenced by the service of a decla- 
 ration, in which the names of the real claimants must be inserted 
 as plaintiffs ; and all of the provisions of law concerning lessors 
 of a plaintiff are made to apply to such plaintiffs. And the use 
 of fictitious names of plaintiffs or defendants, and of the names 
 of any other than the real claimants and the real defendants, and 
 the statements of any lease or demise to the plaintiff, and of an 
 ejectment by a casual or nominal ejector, are abolished. 
 
 It is made sufficient for the plaintiff to aver in his declaration, 
 that (on some day therein to be specified, and which must be after 
 
 * The statutes of tlie state of Indiana were revised by the general assembly in 
 1858, and published in two volumes, according to law. The Revised Statutes, 
 thus certified and published, are still recognized, although in 1862 the statutes of 
 the state were compiled, and published in two Volumes, and these are sometimes 
 called the Revised Statutes of Indiana. The references in this chapter, so far as 
 they relate to the statutes of the state, are to the Revised Statutes of 1853, which 
 are really the only edition publislied by authority of law ; although the compiled 
 laws of 1862 are, undoubtedly, accurate. 
 
702 LAW OF EJECTMENT AND ADVERSE ENJ0T3IENT. 
 
 Ill's title accrued) he was possessed of the premises in question 
 (describing them), and, being so possessed thereof, that the de- 
 fendant afterward (on some day to be stated) entered into such 
 premises, and that he nnhiwfully withliolds from the plaintiff the 
 possession thereof, to his damage any nominal sum the plaintiff 
 may think proper to state ; and the premises so claimed must be 
 described in such declaration with convenient certainty, so that, 
 from such description, possession of the premises claimed may be 
 delivered. If the plaintiff claims any undivided share or interest 
 in any premises, he must state the same particularly in his decla- 
 ration. 
 
 If the action be brought for the recovery of dower, the declara- 
 tion must state that the plaintiff was possessed of the one undi- 
 vided third part of the premises, as her reasonable dower, as widow 
 of her husband, naming him. In every other case the plaintiff 
 must state whether he claims in fee, or whether he claims for his 
 own life, or the life of another, or for a term of years, specifying 
 such life or the duration of such term. And in every case other 
 than where the action is brought for the recovery of a dower, the 
 declaration may contain several counts, and several parties may bo 
 named as plaintiffs, jointly in one count and separately in others. 
 
 To the declaration there must be subjoined a notice, in writing, 
 by the plaintiff or his attorney, addressed to the defendant, and 
 notifying him, first, that the said declai-ation will be filed on some 
 day in the then next term of the court in which the action is 
 brought, specifying such day ; or, if the same be served during 
 the term of any court, that it will be filed on some day in such 
 term, specifying the same ; second, that, upon filing the same, a rule , 
 will be entered requiring such defendant to appear and plead to 
 such declaration within twenty days after the entry of such rule; 
 and third, that, if he neglect so to appear and plead, a judgment 
 by default will be entered against him, and the plaintiff will 
 recoveripossession of the premises. 
 
 If the premises are actually occupied, the declaration must be 
 served by delivering a copy thereof, with the notice of the rule to 
 appear and plead, to the defendant named therein, who shall be in 
 occupancy thereof, or by leaving the same with some white person 
 of the family, of the age of ten years or upward, at the dwelling- 
 house of such defendant, if he be absent. If thepremises claimed arf 
 not actually occupied, the declaration and notice must be served on 
 
EJECTMENT IN ILLINOIS. 703 
 
 the defendant named therein, or, if he cannot be found, by leaving 
 the same with some white person, of the age of ten years or up- 
 ward, at the residence of the defendant; but, where tiie declara- 
 tion shall have been served in any other manner than upon the 
 defendant personally, no rule to plead can be entered without the 
 special order of the court. 
 
 Instead of the rule to appear and enter into the consent rule, as 
 is the custom at common law, the plaintiff, on the day specified 
 for that purpose in the notice aforesaid, or on some day thereafter, 
 upon filing the declaration, with an affidavit of the service of a 
 copy thereof, and of said notice, is entitled to enter a rule requiring 
 the defendant to appear and plead within twenty days after the 
 entering such rule ; and, in case the defendant shall neglect so to 
 appear and plead within such time, his default may be entered. 
 
 The defendant in ejectment may apply to the court, or a judge 
 thereof in vacatoin, to compel the plaintiff's attorney to produce 
 his authority to commence the action, the same as in J^ew York, 
 and all of the provisions of the statutes of Illinois upon that par- 
 ticular subject are precisely similar to those of New York, and 
 need not therefore be repeated here. 
 
 The defendant may demur to the declaration in the action of 
 ejectment, the same as in personal actions, or he is required to 
 plead the general issue only, which must be, that the defendant is 
 not guilty of unlawfully withholding the premises claimed by the 
 plaintiff, as alleged in the declaration ; and the filing of such plea 
 or demurrer will be deemed an appearance in the canse ; and upon 
 such plea the defendant may give the same matter in evidence, and 
 the same proceedings must be had, as upon the plea of not guilty 
 in the action of ejectment as prosecuted at common law. The 
 defendant may likewise give in evidence any matter which, if 
 pleaded in the wi-it of right, or action of dower, would bar the 
 action of the plaintiff. 
 
 The consent rule, formerly used, is abolished. 
 
 The provisions of the Illinois statutes in respect to the proof 
 required of the plaintiff in the action of ejectment, and the form 
 of the verdict to be entered in the various cases specified, are 
 substantially like the statutes of Michigan upon the same subjects, 
 and it is sufficient to refer to such law of Michigan as hereinbefore 
 given in this chapter for the law of Illinois. The statutes of Illinois 
 provide that the action of ejectment shall not be abated by the 
 
704: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 death of any plaintiif, or of one of several defendants, after issne 
 and before verdict and judgment, but the same proceedings may 
 be had as in otiier actions, to substitute the names of those who 
 may succeed to the title of the plaintifl so dying; in which case 
 the issue will be tried as between the original parties ; and in case 
 of the death of a defendant, the cause must proceed against the 
 otlier defendants. 
 
 The judgment in the action of ejectment, if the plaintiff prevail, 
 will be, that the plaintiff recover the possession of the premises 
 according to the verdict of the jury, if there was such verdict; or, 
 if the judgment be by default, according to the description 
 thereof in the declaration, with costs to be taxed. 
 
 The plaintiff recovering judgment is entitled to a writ of pos- 
 session, the form of which is prescribed by tlie statute, and is sub- 
 stantially like the same process where the action is prosecuted at 
 common law. 
 
 The statute provides that every judgment in the action of eject- 
 ment, rendered upon a verdict, shall be conclusive as to the title 
 established in such action, in the same manner and to the same 
 extent as is prescribed by the Revised Statutes of New York ; and 
 the effect of the judgment, when rendered by default, is the same 
 as in New York, except that in Illinois the same is conclusive from 
 and after two years from the time of entering the same, in lieu of 
 three years, as in New York ; and except that the time for a new 
 trial, in such case, is limited to two years instead, of five, as in New 
 York ; and the exceptions in favor of persons laboring under dis- 
 ability are the same in Illinois as in New York, except that the 
 disabled y^ersons in Illinois have only two j'ears after the removal 
 of such disability, in which to bring the new action, while in New 
 York the period is three years. So, also, the court in which a 
 judgment in ejectment shall be rendered, in the State of Illinois, 
 must vacate such judgment and grant a now trial in the action, 
 the same as in New York, and on the same terms as in New York, 
 except that application for such new trial in'Illinois must, in each 
 case, be made within one year after such judgment was rendered 
 instead of three, and two years, as in New York, and no more than 
 two new trials can be had under such provision in Illinois, the 
 same as in New York. When possession is taken by the plaintiff 
 before the verdict is set aside, the remedy is the same as in New 
 York. So, also, the provision of the Illinois statute in respect to 
 
EJECTMENT IN ILLINOIS. 705 
 
 the evidence upon tbe second trial in the action of ejectment is 
 the same as in New York ; and reference may be had to the law 
 in New York, which is given in a previous chapter, npon these 
 several topics, for the law in Illinois, upon the same subject, and 
 thus save a repetition in this place. {Ante, cli. 36.) 
 
 In the state of Illinois, the plaintiff recovering judgment in eject- 
 ment in any of the cases in which the action may be maintained, 
 is entitled to recover damages against the defendant for the rents 
 and profits of the premises recovered ; but, instead of the action 
 of trespass for mesne profits, the plaintiff seeking to recover such 
 damages must, within one year after the entering of the judgment, 
 make and file a suggestion of such claim, which must be entered, 
 with the proceedings thereon, upon the record of such judgment, 
 or be attached thereto as a continuation of the same. The sugges- 
 tion is required to be substantially in the same form as is in use for 
 a declaration in an action of assumpsit for the use and occupation, 
 as near as may be; and it must be served on the defendant in the 
 same manner as is prescribed for the service of a declaration in 
 ejectment. The defendant may plead the general issue of non- 
 assumpsit, and, under such plea, may give notice of or may plead 
 specially any matter in bar of such claim, except such as were or 
 might have been controverted in such action of ejectment ; but ho 
 may plead or give notice of a recovery by such defendant, or any 
 other person, of the same premises, or any part thereof, subsequent 
 to the verdict in such action of ejectment, in bar or mitigation of 
 the damages claimed by the plaintiff. If any issue of fact be joined 
 on such suggestion, it must be tried as in other cases; and if such 
 issue be found for the plaintiff, the jnry must assess his damages 
 to the amount of the mesne profits received by the defendant since 
 heentered into possession of the premises. On the trial of such 
 issue the plaintiff is required to establish, and the defendant may 
 controvert, the time during which he enjoyed the m.esne profits 
 thereof, and the value of such profits; and the record of the 
 recovery in the action of ejectment will not be evidence of such 
 time. On such trial the defendant has the same right to set off 
 any improvements made on the premises, to the amount of the 
 plaintiff's claim, as -is allowed by law ; and in estimating the 
 plaintiff's damages, the value of the use by the defendant of any 
 improvements made by him is not to be allowed to the plaintiff. 
 If no issue of fact be joined on such suggestion, or if judgment 
 89 
 
706 LAW OF EJECTMENT AND ADVERSE ENJOTSfENT. 
 
 thereon be rendered against the defendant by default, or demnn-er 
 or otherwise, a writ of inquiry, to assess the value of such meine 
 profits, must be issued, of the execution of which tlie same notice 
 must be given to the defendant or his attorney as in other cases. 
 And upon the execution of such writ the plaintiff must establish 
 the same matters hereinbefore required in the case of an issue 
 being joined, and the defendant may in like manner controvert 
 the same and make any set-off to which he shall be entitled ; and 
 the jury must assess the damages in the same manner. And tlie 
 same proceedings are had on the writ, and a judgment will be 
 entered on the inquisition taken thereon, as in cases of assumpsit, 
 for use and occupation, whicli will have tlie same effect in all 
 respects. If the plaintiff in ejectment shall have died after issue 
 joined, and before judgment therein, his personal representatives 
 may enter a suggestion of such death, of the granting letters testa- 
 mentary or of administration to them, and may support their claim 
 to the mesne profits of the premises recovered, in the same manner 
 and with the .like effect as the deceased, and the same proceedings 
 in all respects may be had thereon. 
 
 If the action be brought to I'ecover the dower of any widow, 
 which shall not have been admeasured to her before the commence- 
 ment of the action, instead of a writ of possession being issued, such 
 plaintiff must proceed to have her dower assigned in the manner 
 specified in the statute. Provision is also made by statute for occu- 
 pying claimants who may be evicted from any lands for which they 
 can show a plain, clear and connected title in law or equity, de- 
 duced from the record of some public office, without actiial notice 
 of an adverse title in like manner derived from record, to have 
 their improvements assessed and paid for, (K. S. 1845^ ch. 36, 
 §§1-55, 1 Stat, at Large, 1858, pp. 214r-222.) 
 
 By an amendment bf the Revised Statutes of 1845 in respect to 
 ejectments, it is provided that it shall not be necessary in trials of 
 ejectment, where it shall appear by the return that the defendant 
 or defendants were in possession of the premises at the time when 
 suit was brought, for the plaintiff to prove that said defendant or 
 defendants were in possession at the time of bringing such suit, 
 unless the defendant or defendants shall, by special plea, deny that 
 he, she or they were in possession, and that the plea of not guilty 
 shall not put in issue the possession of said premises, (Laws of 
 1855, p. 138, 1 Stat, at Large, p, 223.) 
 
EJECTMEKT IN TLLIKOTS. 1l)1 
 
 The courts of Illinois bold that where the statute is silent in respect 
 to the, action of ejectment, the practice and rules of the common 
 law are applicable. {Williams "v. Bunton, 3 Gilman's H. 600.) 
 
 Under the statutes of Illinois, a party in ejectment cannot recover 
 unless ho shows himself entitled to the possession of the premises 
 claimed at the time of the demise laid in the declaration. ( Wood 
 V. Morton, 11 111. R. 547.) And the plaintiff must also show a 
 legal title in himself at the time of the commencement of the 
 action. {PitUn v. Yaw, 13 111. R. 251. Joy v. Berdell, 25 ib. 537.) 
 
 In Illinois the action of ejectment is a real action for the recovery 
 of title as well as possession, and is not an action of tort ; and the 
 action, survives against the heir of a sole defendant and against 
 surviving defendants! {Guyer v. Woohey, 18 111. E. 536.) And a 
 plaintiff in ejectment must recover, if at all, upon the strength of 
 his own title, and not upon the weakness of the defendant's. {Mar- 
 shall V. Barr, 35 111. E. 106.) Althongh a defendant in ejectment 
 may-have acquired the possession of the premises in controversy by 
 a forcible entry tlierein, the courts hold that that cannot be brought 
 in question in the action. [Redfern v. liedfern, 38 111. R. 509.) 
 
 It is not competent, in an action of ejectment, to show who paid 
 the consideration money on the conveyance of the premises to the 
 plaintiff, with a view to establish a trust ; because in this action 
 the legal title must prevail against every equity. {Chiniqiiy v. 
 The Catholic Bishop of Chicago, 41 111. R. 148.) 
 
 The defendant in an action of ejectment cannot qiiestion the 
 validity of the title under which he entered into possession ; he 
 must first restore the possession to tlie party from whom he received 
 it, and then he may attack the title under which his possession was 
 commenced. This is the general rule at common law, and the 
 courts of Illinois recognize the same. {Tilghman v. Little, 13 111. 
 R. 239.) 
 
 But where a party acquires possession of land under an execu- 
 tory contract of purchase, the courts of Illinois hold that the vendor 
 cannot maintain ejectment until notice to quit, or demand of pos- 
 session has been made ; or, at least, they hold this to be the general 
 rule, although it is held that a purchaser may forfeit his right to 
 the ■ possession of land; and if he repudiates the contract under 
 which he obtained possession, or fails to comply with its terms, the 
 seller may regain possession by ejectment, without demand of 
 possession or notice to quit. This is really about the, same doo- 
 
708 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 trine as recognized in New York and other states. {Prentioe v. 
 Wilson, 14 111. E. 91. Vide Stow v. Russell, 36 ib. 18.) 
 
 As a general principle, the courts of Illinois hold that an out- 
 standing title in a third person, superior to that of the plaintiff, is 
 sufficient to defeat a recovery in ejectment, although the defendant 
 ma}' not be able to connect himself with that title. {Rupert v. 
 Marh, 15 111. E. 540. Masterson v. Cheeh, 23 ib. 72. Stuart v. 
 Dutton, 39 ib. 91.) Whether a judgment of foreclosure on scire 
 facias would be such an outstanding title as would constitute a 
 defense in the action of ejectment, would depend upon the fact 
 whether the record of the mortgage is older than the judgment 
 under which a plaintiff claims title. {Hall v. Lane, 25 111. E. 278.) 
 
 Setting up the homestead right in an action of ejectment defeats 
 the claim to recover possession ; and when the homestead is claimed, 
 the fact that tlie premises were of a value exceeding one thousand 
 dollars, does not at all weaken the defense as a bar to a recovery in 
 ejectment. But where the homestead right is set up as a defense 
 in ejectment, and there is a part of the premises sought to be 
 recovered to which the right does not attach, such part may be 
 recovered in the same action. {Vide Connor v. Nichols, 31 111. 
 E. 148. Smith v. Miller, Ib. 158. Thornton v. Boyden, Ib. 200. 
 Pardee v. Lindley, Ib. 175.) 
 
 Under a declaration in ejectment for the entire premises, the 
 courts of Illinois hold, that an undivided interest less than the 
 whole cannot be recovered. {Murphy v. Orr, 32 111. E. 489. 
 Ballance v. RanMn, 12 ib. 420. Rupert \. Marjc, supra.) 
 
 It is held that the payment of a mortgage debt by the mort- 
 gagor terminates the right of possession by a lessor under the 
 mortgagee. But a mortgagor cannot maintain ejectment where 
 the title, entry and ouster in the declaration are laid before the 
 date of the extinguishment of the mortgage debt. In such case 
 the right of possession only accrues after the extinguishment of 
 the debt. {Holt v. Rees, 44 111. E. 30. Wood v. Morton, 11 ib. 548.) 
 
 In an action of ejectment for the recovery of mortgaged prem- 
 ises against the widow and heir of the mortgagor, the plaintiff need 
 not trace the title back of the common source, and it cannot mat- 
 ter whether an affidavit of the loss of a deed, in the chain prior 
 to the mortgage, is sufficient or not, as the deed itself is not mate- 
 rial in showing a right of recovery. {Pollock v. Maison, 41 111. 
 E. 516.) 
 
EJECTMENT IN ILLINOIS. 709 
 
 Under the statute of Illinois, a conveyance of plaintiff's title to 
 a third person, pending suit, does not defeat his right of recovery. 
 In such case the recovery in ejectment inures to the benefit of the 
 grantee of the plaintiff. This is probably the rule at common law, 
 although the decisions of the courts in the several states are con- 
 tradictory. But the statute of Illinois determines the question as 
 above. {Mills v. Graves, 44 111. R. 50.) 
 
 The return of the officer who serves the process in an action of 
 ejectment is sufficient proof that the defendant was in possession 
 at the commencement of the suit, unless he files a plea denying 
 such possession. {Harding v. Strong, 42 111. E. 148.) 
 
 It is held that the vacating of the j|Udgment in ejectment, upon 
 taking a new trial in the court below, under the statute, will not 
 operate to discontinue a writ of error pending at the time, which 
 was brought by the party thus taking the new trial, to reverse 
 that judgment. Notwithstanding the judgment has been vacated, 
 the superior court will retain jurisdiction of the writ of error, and 
 decide the case as presented on the record. {Eees v. The City of 
 Chicago, 40 III. K. 107.) 
 
 The statutes of Illinois require that the declaration in eject- 
 ment shall be served upon the actual occupant, and the practice 
 of the courts of the state authorizes the appearance of the land- 
 lord, and his defense of the suit, either in his own name or 
 that of the tenant, with his consent. {Williams v. Brunton, 3 
 Gilman's E. 600.) And when a landlord has undertaken the 
 defense 'of a suit in the name of the tenant, with his consent, the 
 tenant cannot interfere with the cause to his prejudice. {Doe v. 
 Franklin, 7 Taunton's E. 9.) And upon these grounds the supreme 
 court of the United States, in a case wherein a ])arty had recov- 
 ered a judgment in ejectment, in the circuit court of the United 
 States for the northern district of Illinois, against a partj' or tenant 
 in possession of a parcel of land in that district, held that where 
 the defendant in ejectment in the court below, died after judg- 
 ment, and his attoi'ney and landlord who had conducted the suit 
 in the name and with the consent of the deceased, sued out a writ 
 of error in the name of the heirs, gave bond for the prosecution 
 of the writ and for costs, a motion to dismiss the writ will not be 
 entertained, although the heirs of the deceased authorize the mo- 
 tion to dismiss. It appeared to the court that the attorney of the 
 deceased defendant, in such case, was a lona fide claimant of the 
 
710 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 land, and prosecuting the writ of error in good faith ; and hence 
 the motion to dismiss the writ of error in the case was overruled. 
 {Kellogg v. Forsijth, 2 Wallace's K. 186.) 
 
 At an early day in the history of the state of Illinois, the supreme 
 court of" the United States had under consideration a case involv- 
 ing the title to a parcel of land in Cliicago, in which some 
 very important principles were settled. An action of ejectment 
 was brought in the circuit court of Cook count}-, iu said state, for 
 the recovery of a part of the military post of Fort Dearborn, at 
 Chicago, against a defendant who was in possession of the premises 
 as the commander of the post. The defendant appeared, and after 
 the usual pleadings the cause was tried, and resulted in a judg- 
 ment for the defendant ; and an appeal was taken to the supreme 
 court of Illinois, by which court the judgment of the circuit court 
 was reversed, and judgment entered for the plaintiff below. To 
 reverse this judgment, a writ of error was sued out at the instance 
 of the United States, and the case taken to the supreme court of 
 the United States ; and after a very able argument by Mr. Butler 
 and Mr. Grundy, attorney-general, for the plaintifis in error, and 
 by Mr. Key and by Mr. "Webster, for the defendant in error, the 
 following propositions, among otiiers, were laid down : 
 
 The decision of the register and receiver of a land office, in the 
 absence of fraiid, would he conclusive as to the facts that the 
 applicant for the land was then in possession, and of his culti- 
 vating the land during tiie preceding year, because these questions 
 are directly submitted to those ofKcers. Yet, if they und^-take to 
 grant pre-emptions to land on which the law declares they shall 
 not be granted, then they are acting upon a subject matter clearly 
 not within their jurisdiction, as much so as if a court, whose jnris- 
 diction was declared not to extend beyond a given snm, should 
 attempt cognizance of a case beyond the sum. Appropriation of 
 land by the government is notliing more or less than setting it 
 apart for some particular use. In the case before the court, it was 
 held that there had been an appropriation of the land, not only in 
 fact, but in law, for a military post, for an Indian agency, and for 
 the erection of a lighthouse. 
 
 By the act of congress of 1830, all lands are exempted from 
 pre-emption which are reserved from sale by order of the presi- 
 dent of the United States. The president speaks and acts Ihrongli 
 the heads of the several departments, in relation to subjects which 
 
EJECTMENT IN ILLINOIS. 711 
 
 appertain to their respective duties. Botli military posts and In- 
 dian ajBFairs, including agencies, belong to the war department. 
 A reservation of lands, made at the request of the secretarj' of 
 war, for purposes in his department, must be considered as made 
 by the president of the United States, within the terms of the act 
 of congress. 
 
 Whensoever a tract of land shall have once been legally appro- 
 priated to any purpose, from that moment the land thus appro- 
 priated becomes secured from the mass of public lands ; and no 
 subsequent law, or proclamation, or sale, would be construed to 
 embrace it, or to operate upon it, although no other reservation 
 was made in it. 
 
 The right of pre-emption was a bounty extended to settlers and 
 occupants of the public domain. This bounty, it cannot be sup- 
 posed, was designed to be extended to the sacrifice of public estab- 
 lishments, or of great public interests. 
 
 Nothing passes a perfect title to public lands, with the excep- 
 tion of a few cases, but a patent. The exceptions are, wlien con- 
 gress grants lands in words Of present grant. The general nile 
 applies as well to pre-emptions as to other purchases of public 
 lands. 
 
 The act of the legislature of Illinois, giving a right to the 
 holder of a register's certificate of the entry of public lands to 
 recover possession of such lands in an action of ejectment, does 
 not apply to cases where a paramount title to the lands is in the 
 hands df the defendant, or of those he represents. The exception in 
 the law of Illinois applies to cases in which the United States have 
 not parted with the title to the land by granting a patent for it. 
 
 A state has a perfect right to legislate as she may please in 
 regard to the remedies to be prosecuted in her courts, and to regu- 
 late the disposition of the property of her citizens, by descent, 
 devise or alienation. But congress are invested, by the constitu- 
 tion, with the power of disposing of the public land, and jnaking 
 needful rules and regulations respecting it. 
 
 Where a patent has not been issued for a part of the public 
 lands, a state has no power to declare any title, less than a patent, 
 valid against a claim of the United States to the land, or against 
 a titleheld under a patent granted by the United States. 
 
 Whenever the question in any court, state or federal, is, whether 
 the title to property which had belonged to the United States haa 
 
712 ZAW OF EJECTMENT AND ADVERSE ENJOTDIENT. 
 
 passed, that question must be resolved by the laws of the United 
 States. But -whenever the property has passed, according to those 
 laws, then the property, like all other in the state, is subject to 
 state legislation, so far as the legislation is consistent with the 
 admission that the title passed and vested according to the laws 
 of the United States. 
 
 Every tribunal acting judicially, while acting within the sphere 
 of its jurisdiction, where no appellate tribunal is created, its judg- 
 ment is final, and even when it only comes collaterally in ques- 
 tion, so long as it is nni-eversed. But directly the reverse is true 
 in relation to the judgment of any court acting beyond the pale 
 of its authority. 
 
 Tlie principles settled by this case are practical and important, 
 and have an application, not only in the state of Illinois, but 
 throughout the entire Union, and especially in all of the western 
 states. Although there have been some changes in the departments 
 at "Washington since the disposition of the case, the decision is of the 
 same practical effect now that it was at tlie time it was pronounced. 
 ( Wilcox V. JaoJcson, 13 Peters' R. 498.) The principle last above 
 laid down is concisely and accurately stated in a much earlier 
 case before tlie same court, wherein it was declared that " where a 
 court has jurisdiction, it has a right to decide any question which 
 occurs in the cause ; and, whether its decision be correct or other- 
 wise, its judgments, nntil reversed, are regarded as binding in 
 every other court. But if it act without authority, its judgments 
 and orders are regarded as nullities. Tiiey are not voidable, but 
 simply void, and form no bar to a remedy sought in opposition to 
 them, even prior to a reversal. They constitute no justification, 
 and all persons concerned in executing such judgments or sen- 
 tences are considered, in law, as trespassers. The jurisdiction of 
 any court exercising authority over a subject may be inquired into 
 in every other court, where the proceedings of the former are relied 
 on, and brought before the latter by a party claiming the benefit 
 of such proceedings." This, as a rule of evidence, is quite impor- 
 tant to be understood in connection with tiie action to recover 
 real property. {Elliott v, Piersol, 1 Peters' R, 329, 840.) 
 
EJECTMENT IN WISCONSIN: 713 
 
 CHAPTEE XL. 
 
 THE ACTION FOE THE EECOVEKT OF EEAL PROPEETT IS THE SETEEAL 
 STATES — THE PEACTICE IN •WISCONSIN, MINNESOTA AND IOWA. 
 
 In the state of "Wisconsin, the action to recorer real property 
 was formerly called the action of ejectment ; but under tlie present 
 practice it is termed an action for the recovery of specific real 
 property, or of the possession thereof; and the action is com- 
 menced and proceeded in in the same manner as other civil 
 actions, with snch exceptions as are noted. 
 
 No person can recover in an action for the recovery of real 
 property unless he has, at tlie time of commencing the action, a 
 valid, subsisting interest in the premises claimed, and a right to 
 recover tlie same, or to recover the possession thereof, or of some 
 share, interest or portion thereof, to be proved and. established at 
 the trial. And, if the premises for which the action is brought 
 are actually occupied by any person, such actual occupant must 
 be named defendant in the complaint; if they are not so occupied, 
 tlie action must be brought against some person exercising acts of 
 ownership on the premises claimed or claiming title therein at the 
 commencement of the action. 
 
 The complaint in the action must set forth that the plaintiff has 
 an estate or interest in the premises claimed, particularly stating 
 the nature and extent of such estate or interest, whether in fee, in 
 dower, for life or a term of years, specifying such life or lives or 
 the duration of such term, and that he is entitled to the possession 
 of such premises, and that the defendant unlawfully withholds 
 the possession thereof from him, to his damage such sum as the 
 plaintiff claims for his damages, and must contain a demand for 
 the i"elief to which the plaintiff supposes- himself entitled. In tlie 
 complaint the premises claimed must be described with convenient 
 certainty, designating the number of the lot or township, if any, 
 in which they shall be situated ; if none, stating the names of tiie 
 last occupants of the lands adjdining the same, if any ; and if 
 none, describing such premises by metes and bounds, or in some 
 other way, so that from such description possession of the premises 
 claimed may be delivered. 
 90 
 
714 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 No action for the recovery of specific real property, or the pos- 
 session thereof, must be commenced by an attorney unless he has 
 written authority from each one of the plaintifi's for commencing 
 the same ; any written request of such plaintiff or his agent to 
 commence such action, or written recognition of the authority to 
 commence the same, duly proved by the affidavit of such attorney 
 or other competent witness, is made sufficient presumptive evidence 
 of such authority ; sucli affidavit must be annexed to and filed Avith 
 the complaint. 
 
 The defendant may demur to or answer the complaint, as in 
 other personal actions ; he ma}' also, in his answer, set up any matter 
 as a defense which would have formed an equitable defense under 
 the late practice in the state, in which case the answer must con- 
 tain a demand for such relief as he supposes himself entitled to. 
 It is not necessary for the plaintifii' to prove an actual entry under 
 title, nor the actual receipt of any profits of the premises demanded, 
 but it is sufficient for him to show a right to tlie possession of such 
 premises at the time of the commencement of the action, as heir, 
 devisee, purchaser, or otherwise. And it is not necessary, on the 
 trial, for the defendant to confess, Bor for the plaintiff" to prove, 
 lease, entry and ouster, or either of them, except that if the action 
 be brought by one or more tenants in common, or joint-tenants, 
 against their co-tenants, the plaintiff, in addition to all otlier 
 J evidence which he maj'be bound to give, is required to prove that 
 the defendant actually ousted such plaintiff, or did some other act 
 amounting to a total denial of his right as such co-tenant. 
 
 If the action be brought against several defendants, and a joint 
 possession of all be proved, tlve plaintiff' will be entitled to a verdict 
 against all, whether they shall have answered separately or jointly, 
 the same as is the practice in the state of New York ; and the 
 practice in "Wisconsin, in respect to the cases in which the plaintiff 
 is required to elect wliich of several defendants he will proceed 
 against, and the form of the verdict in the action, is substantially 
 the same as in New York, and may be ascertained by consulting 
 the chapter in which the action is treated for New York. Tlio 
 plaintiff in any action for the recovery of specific real property, 
 or of the possession thereof, in Wisconsin, is entitled in the same 
 action to recover damages for the rents and profits of the premi- 
 ses recQvered during the time the same are unlawfully withheld. 
 But, if the action is brought for the recovery of dower, the plaintiff 
 
EJECTMENT IN WISCONsM 715 
 
 is entitled to recover such damages as the court and jury deem 
 pix)per. The plaintiff, however, can in no case recover the rents and 
 profits of the premises recovered, for a longer term than six years. 
 
 In all cases where tlie jury find the plaintiff is entitled to 
 recover the lands claimed, or any estate, share or interest therein, 
 the same jury must assess tlie plaintitt''s damages for the unlawful 
 withholding of the premises, including the mesne profits received 
 by defendant in cases where plaintiff is entitled to recover such 
 mesne profits. And, on tlie trial of the action, the defendant has 
 the same right to set oft' permanent improvements made on tlie 
 premises to the amount of the plaintifi''s claim, as is allowed by 
 law. In estimating the plaintiff's damages, the value of the use 
 by the defendant of any improvements made by him is not to be 
 allowed. 
 
 If the right or title of a plaintiff in ejectment expire after the 
 commencement of the action, but before the trial, the verdict must 
 be returned according to the fact, and judgment must be entered 
 that he recover his damages by reason of the withholding of tlic 
 premises by the defendant, to be assessed, and that, as to the 
 premises claimed, the defendant go thereof without day. 
 
 The practice in respect to the form of the judgment in the 
 action for the recovery of real property in "Wisconsin, and the 
 effect of such judgment, and the practice in respect to vacating 
 Bueh judgment and granting a new trial in Wisconsin, are substan- 
 tially the same as in New York and Illinois, with a slight varia- 
 tion in the time limited, and except that in Wisconsin only one 
 new trial can be had under the provision of the statute. The 
 time for applying for the new trial 'in Wisconsin is one year after 
 the rendition of the judgment; and the time after which the 
 judgment is conclusive is two years ; and the time during which 
 persons are under disabilitj' is not deemed a part of thp two years. 
 
 When the action is brought to recover the dower of anj' widow, 
 instead of an execution being issued on the judgment, the plaintiff 
 must proceed to have her dower admeasured, the same as in Illinois 
 and New York ; and the costs and expenses of such admeasure- 
 ment are to be subject to the order of the court. 
 
 In the state of Wisconsin the statute declares that no action 
 shall be maintained by a mortgagee, or his assigns or representa- 
 tives, for the recovery of the possession of the mortgaged prem- 
 ises, until the equity of redemption shall havg expired. 
 
716 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Any person having the possession and legal title to land in 
 "Wisconsin may institute an action against any other person setting 
 up a claim thereto, and, if the plaintiff sliall be able to substantiate 
 his title to the land, the defendant will be adj^udged to release to 
 the plaintiff all claim thereto, and to pay costs, unless the defend- 
 ant shall by his answer disclaim all title to such land, and give a 
 release to the plaintiff, in which case the defendant is entitled to 
 costs, except the court, on a hearing of the cause, shall otherwise 
 order or adjudge. 
 
 The statute of Wisconsin also provides a remedy for the defend- 
 ant in the action to recover real property for his improvements on 
 the premises recovered in certain specified cases ; but it is thought 
 best to omit the provisions of the statnte in this place. 
 
 The foregoing statement contains substantially the provisions of 
 the "Wisconsin statute in respect to real actions, except in those 
 eases where the l&vf may be found by reference to the practice in 
 New York and Illinois.' (R. S. 1858, ch. 141.) 
 
 But there are some general provisions concerning actions relating 
 to real estate which it is necessary to refer to. 
 
 If any tenant for life, in dower, or of curtesy, or any tenant for 
 years, be impleaded, and the person to whom the reversion or 
 remainder appertains shall come into court before any trial shall 
 be had in the action, or before judgment by default therein, and 
 pray to be received to defend his right, he must be received for 
 tliat purpose, and will be permitted to plead to the action upon 
 such terms as the court may deem just. And if any tenant for life 
 or years make default, or give up any lands demanded, so that 
 judgment be given on such default or surrender, the person to 
 whom the reversion or remainder of such lands appertains may, 
 after the termination of the estate of such tenant, have an action 
 to recover the same lands. 
 
 "Where a husband and wife shall be impleaded, if the husband 
 absent himself or will not defend the rights of the wife, if she 
 apply before judgment she will be admitted by the court to defend 
 witliout her husband. And if the husband lose by default any 
 land which was the right of the wife, the wife, after the death of 
 her husband, may have an action to recover the same, and the 
 judgmeTit by default will be no bar to the action. 
 
 All recoveries had by agreement of parties, or by fraud, against 
 any tenant for life, iu dower, or by curtesy, of any lands, are 
 
EJECTMENT IN WISCONSIN. 717 
 
 declared void as against all persons to whom any reversion or 
 remainder of such lands shall appertain, and as against their heirs, 
 unless the appearance of the person having such reversion or 
 remainder shall have been duly entered in the court where the 
 recovery shall be had. 
 
 No execution can be avoided by means of any feigned recovery, 
 but all persons entitled to have execution of the lands will have 
 the like means to avoid or falsify the same recoveries as a tenant 
 of the freehold, who was neither party nor privy to sucii recovery, 
 has by the course of conmion law ; and the same rights appertain 
 to lessees for years. 
 
 After any recovery had, the recoverers, their heirs and assigns 
 will have the like remedies against any lessees for years, their 
 representatives and assigns, for any rei.ts or services rendered, 
 as the lessees might have had if such recoveries had not been 
 made. 
 
 When any person shall die, leaving heirs, either in the same or 
 in different degrees, and where several persons shall be in any other 
 way entitled to real estate as tenants in common, or as joint- 
 tenants, they may bring a joint action for the recovery thereof, or 
 may bring several actions for their respective shares or interests. 
 Actions relating to real property are not to be delayed on account 
 of the infancy of any defendant therein, but a guardian must be 
 appointed to defend the rights of any such infant defendant, as in 
 personal actions. 
 
 A survey of any premises involved in the action may be had 
 by order of the court, but every person procuring the survey will 
 be accountable to the party injured for any damage which may be 
 done in making the same. 
 
 Landlords maybe made defendants in actions brought to recover 
 the lands occupied by their tenants. And whenever any action 
 for the recovery of any lands shall be commenced against any 
 person in possession of such premises, the same will not be barred 
 or delayed by reason of any alienation or conveyance made by such 
 person to any other, either before or after the commencement of 
 the action. But the purchaser of sucli lands during suit may be 
 made liable for the damages for the' time that he shall have 
 possessed the premises. An execution maybe issued upon tlie 
 judgment in any action relating to real property, foV the delivery 
 of the possession of such property, and the costs of the action. 
 
718 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 The practice in actions relating to real estate is the same in all 
 respects as in personal actions, except wliere otherwise specially 
 provided by law, and all the provisions of law respecting pleadings, 
 process, records, and judgments in personal actions are made, so 
 far as the nature of such actions will admit, to apply to actions 
 relating to real estate. (K. S. ch. 146.) 
 
 The courts of Wisconsin, in common with the courts of most 
 of the other states, hold that, in ejectment, the plaintiff must 
 recover, if at all, npon the strength of his own title, and not from 
 the weakness or want of title of the defendant ; and that the defend- 
 ant in such action may, in any legal manner, assail and destroy the 
 title of the former. {Gardiner v. Tisdale, 2 "Wis. E. 153. 
 Gillett V. Eaton, 6 ib. 30.) And it is further held, that an atition 
 of ejectment is a legal remedy, and can be maintained only by a 
 person having a legal title to the land. It is not a proper remedy 
 for a cestui que trust, or one who has only an equitable interest. 
 {Gillett V. Tregansa, 13 A^is. E. 473. JSaton v. Smith, 19 ib. 537.) 
 The owner of the equity of redemption of mortgaged premises 
 cannot recover in an action of ejectment against the mortgagee or 
 his assigns, who are legally in possession of the premises after con- 
 dition broken. {Gillett v. Eaton, 6 Wis. E. 30. Tallman v. JEly, 
 Ib. 244.) Neither can such mortgagor recover against the tenant 
 of such mortgagee, who is in possession of the mortgaged premises, 
 after condition broken. {Ilennesy v. Farrell, 20 Wis. E. 42.) And 
 the same doctrine will apply to any person in possession of the 
 mortgaged premises after condition broken, who stands in the 
 same position of the mortgagee in possession ; no such person can 
 be ousted by ejectment. {Stack v. Brown, 12 Wis. E. 572.) 
 
 Under the statutes in force in the state in 1839, and ever since, 
 an action of ejectment could be maintained against any person 
 exercising acts, of ownership on the premises of tbe plaintiff, or 
 claiming title thereto, or some interest therein at the commence- 
 ment of the suit, although such premises were uno(ieupied. {Hill 
 V. Kircke, 11 Wis. E. 442.) But the cases in which an action in 
 respec-t to real property may be brought are enumerated in a 
 previous chapter, and need not be repeated here. {Ante, cli. 3.) 
 
 Under the statutes of Wisconsin, in an action for the recovery 
 of real estate, the defendant may avail himself of an equitable 
 defense, such as part performance of a parol contract between, 
 himself and the plaintiff's ancestor for' the conveyance of the land 
 
HJECTMEKT ly WISCONSm. 719 
 
 in dispute, entitling him to a specific performance, or a mistake, 
 or the use of equivocal terms in the description of the land in the 
 deed to the defendant, rendering it not sufficiently specific to ex- 
 press the intention of the parties. {Fisher v. MorlicTc, 13 Wis. E. 
 321. Prentiss v. Brown, 17 ib. 63.5.) 
 
 "Where both parties claim under the same grantor, if the answer 
 admits title in such grantor, the plaintiff may avail himself of 
 Buch admission, and need only prove the derivation of his title 
 from such grantor. He will not thereby admit the other allega- 
 tions of the answer as to any grant of the same or other lands by 
 the same grantor to the defendant. {Orton v. Noonan, 19 "Wis. 
 R. 350. And vide Sexton v. lihames, 13 ib. 99.) And where the 
 complaint in ejectment alleged "that, on the 19th of September, 
 1859, and thenceforth till the 9th of April, 1860, the defendant 
 ■was lawfully seised as of an estate of inheritance in fee simple, 
 and. in possession" of the premises in suit; that on the first named 
 day a certain judgment was rendered against said defendant, and 
 on the second named day the premises were sold on execution to 
 the plaintiff; the answer of the defendant denied any knowledge 
 or information sufficient to form a belief as to each and every 
 allegation of the complaint, except that " defendant has been in 
 possession of said premises for a long time, and is now in posses- 
 sion thereof." Tlie court questioned whether this was not an 
 admission of title and possession in the defendant as alleged in 
 the complaint. The court did hold, however, that if an execution 
 defendant is in possession of lands at the time of the levy, this is 
 sufficient prima facie evidence of title to authorize a sale on the 
 execution. And further, that, where the defendant in a judgment 
 is in possession at the time of levy and sale, he can make no 
 defense in ejectment against a purchaser at such sale, but such 
 purchaser acquires a right at least to the debtor's possession. 
 {Bunker v. Ea7id, 19 "Wis. E. 253.) 
 
 The defendant in an action of ejectment demanded positive 
 relief in his answer, but the circuit court denied the same because 
 it required an adjudication of tlie rights of one not a party, and 
 the supreme court held that the ruling at the circuit was correct. 
 {Call V. Chase, 21 Wis. E. 511.) 
 
 A judgment of nonsuit entered by consent in a former eject- 
 ment suit for the same land, between the same parties, after a 
 judgment in favor of the defendant has been set aside and a new 
 
720 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 trial granted under the provisions of the statute, is held to be a 
 bar to another action therefor, whether in the same or a different 
 court. And it is further held that the privilege of a new trial in 
 an ejectment suit, granted by section 33, chapter 106, Revised 
 Statutes 18i9, section 20, chapter 141, Revised Statutes 1858, 
 upon payment of costs and damages without cause shown, after 
 there lias been a fair trial on tlie merits and judgment perfected, 
 was designed to give the defeated party the benefit of another 
 trial of the same identical cause, and before the same court, nnless 
 the place of trial was legally changed ; and the party obtaining it 
 cannot afterward abandon such suit altogether, and commence 
 another for the same cause before tlie same or a different court. 
 {Cunningham v. The City of Milwaukee, 13 Wis. R. 120.) 
 
 But a discontinuance of an action of ejectment by stipulation, 
 no provision being made relative to tiie possession, after a judg- 
 ment has been rendered in favor of the plaintiff and he put in 
 possession, and a new trial has been granted to the defendant, 
 remits the parties to the same position and rights enjoyed by them 
 when the litigation commenced, and the defendant is entitled to 
 an order for the possession of the premises. (Wakeley v. Belor 
 plaine, 15 Wis. R. 554.) 
 
 The damages recoverable under section 13, chapter 141, Revised 
 Statutes, 1858, by the plaintiff, in an action for the recovery of real 
 property, are confined to the rents and profits. He cannot, in such 
 action, recover for waste or injuries to the land. And the defend- 
 ant in tlie action is entitled to allowance for the value of perma- 
 nent improvements made by him on the premises, to tlie amount 
 which they have enhanced the value of the whole premises for the 
 purposes for which they are to be used, and no more ; and, upon 
 the issue as to such improvements, the plaintiff should be allowed 
 for the use of the premises, exclusive of the improvements, from 
 the date of his judgment to the date of the decision of that issue. 
 {Pacquette v. Pichiess, 19 Wis. R. 219.) 
 
 In actions for the recovery of real property, the complaint must 
 particularly state the nature and extent of the plaintiff's estate or 
 interest in the premises, and the judgment must follow the com- 
 plaint. If the plaintiff's complaint claims an undivided share he 
 cannot recover the whole, nor any greater share of the premises 
 than he claimed ; neither can he, on a claim of the whole have 
 judgment for an undivided share or part thereof. [Allie v. 
 
njECTiruNT nr minitesota. 721 
 
 Schnitz, 17 "Wis. E. 169.) And the judgment and writ of pos- 
 session must follow the complaint as to the description of the 
 premises ; and if such description is so detective and uncertain 
 that the premises cannot be ascertained therefrom — for example, 
 where they are described as the " south twenty -eiglit feet of a vil- 
 lage lot," and it appears that the bonndary lines of such lot run 
 Horth-east and north-west — judgment for the plaintiff cannot be 
 entered, but a nonsuit would be proper. (Orton v. Noonan, 18 
 Wis. R. 4i7.) 
 
 In the state of Minnesota the distinction between the forms of 
 action at law is abolished, and they have there but one form 
 of action at law, which is called a civil action, for the enforcement 
 or protection of private rights, and the redress of private wrongs, 
 with certain exceptions provided by statute. The actitm to recover 
 real property, like other actions, is commenced by the service of a 
 summons, and the party complaining is known as the plaintiff, and 
 the adverse party as the defendant. The action for the recovery 
 of real property, or of an estate or an interest therein, or for the 
 determination in any form of such right or interest, must be tried 
 in tlie county in which the subject of the action, or some part 
 thereof, is situated, subject to the power of the court to change 
 , the place of trial where there is reason to believe that an impartial 
 trial cannot be had therein, or where the convenience of witnesses 
 and the ends of justice would be promoted by the change. (R. S. 
 ch. 70, §§ 1,2, 39, 48. Comp. Stat. 1858, ch. 60, §§ 1, 2, 39, 48. 
 Gen. Laws, 1866, ch. 71.) 
 
 In actions for the recovery of real property the summons is served, 
 and the pleadings and proceedings are the same as in other civil 
 actions, which are fully set forth in chapter 60 of the Compiled 
 Laws of 1858, and the amendment of section fifty-four of that 
 chapter by the laws of 1864, chapter 42, and found also in the 
 General Laws of 1866, chapter 71. An action may be brought 
 by any person in possession, by himself or his tenant, of real 
 property, against any person who claims an estate or interest 
 therein adverse to him, for the purpose of determining such 
 adverse claim, estate or interest. And any person having or 
 claiming title to vacant or unoccupied real estate may bring 
 an action against any person claiming an estate or interest 
 therein adverse to him, for the purpose of determining such 
 adverse claim and the rights of the parties respectively. (Comp. 
 91 
 
723 LAW OF EJECTMEJffT AND ADVERSE ENJOYMENT. 
 
 Laws of 1858, cli. 64, §1, and Gen. Laws of 1866, cL 75, §1, as 
 amended by the General Laws of 1867, ch. 72, § 1.) 
 
 If the defendant in the action disclaim in his answer any inter- 
 est or estate in the property-, or suffer judgment to be taken against 
 him without answer, the plaintiff cannot recover costs. And in 
 an action for the recovery of dower, before admeasurement, or by 
 a tenant in common, or joint-tenant of real property, against a 
 co-tenant, the plaintiff must show, in addition to the evidence of 
 his right, that the defendant oitlier denied the plaintiff's riglit, or 
 did some act amounting to such denial. (Gomp. Stat. 1858, ch. 64, 
 §§2, 3. Gen. Laws, 1866, ch. 75, §§2, 3.) 
 
 In an action for the recovery of specific real property, where the 
 plaintiff shows a riglit to recover at the time the action was com- 
 menced, but- it appears that sucli riglit has terminated during the 
 pendency of the action, the verdict and judgment must be accord- 
 ing to the fact, and the plaintiff may recover damages for with- 
 liolding the property. (Gomp. Stat. ch. 64, § 4. Gen. Laws, ch, 
 75, §4.) 
 
 Any person against whom a judgment is recovered in an action 
 for the recovery of real property may, within six months after 
 written notice of such judgment, upon payment of all costs and 
 damages recovered thereby, demand another trial by notice in 
 writing to the adverse party, or his attorney in the action, and 
 thereupon- the action must be re-tried, and maybe brought to trial 
 by either party. (Gomp. Stat. ch. 64, § 5. Gen. Laws, ch. 75, §5, 
 as amended by General Laws of 1867, ch. 72, § 2.) 
 
 If, on a second trial as thus provided, judgment be to the same 
 effect as on the first, no further trial can be had, unless the court 
 in its discretion, on motion by the party as to whom the judgment 
 last rendered is less favorable than the first, order a third trial. 
 And the judgment on a trial had under these provisions must be 
 annexed to the judgment roll of the former trial, and tlie judgment 
 last given will be the final determination of the rights of the par- 
 ties. If a prior judgment shall have been executed, restitution 
 must be ordered, as the last judgment may determine the rights 
 of the parties, and the same may be enforced by execution. (Gomp. 
 Stat. ch. 64, §§ 6, 7. Gen. Laws, ch. 75, §§ 6, 7.) 
 
 Damages for withholding the property recovered can in no ease 
 exceed the fair value of the property, exclusive of the use of im- 
 provements made by the defendant, for a period not exceeding six 
 
EJECTMENT ly MINNESOTA. 723 
 
 years ; and where permanent improvements have been made by a 
 defendant or those under whom he claims, holding under color of 
 title adversely to the claims of the plaintiff in good faith, the value 
 thereof must be allowed as a set-off against the damages of the 
 plaintiff for the use of the property. (Comp. Stat. ch. 64., § 8. 
 Gen. Laws, ch. 75, § 8.) 
 
 The court in which an action is pending for the recovery of real 
 property may, on motion, upon notice by either party, and for 
 cause shown, grant an order allowing to such party the right to 
 enter upon the property and make survey and measurement thereof 
 for the purpose of the action. The order must describe the prop- 
 erty, and a copy thereof must be served on the owner or occupant, 
 and thereupon such party may enter iipon the property with neces- 
 sary surveyors and assistants, and make such surve^"^ and measure- 
 ment ; but if any unnecessary injury be done to the property, he 
 is liable therefor. (Comp. Stat. ch. G4, §§9, 10. Gen. L'aws, ch. 
 75, §§9, 10.) 
 
 A mortgage of real property is not to be deemed a convej'ance, 
 60 as to enable the owner of the mortgage to recover possession of 
 the real property without a foreclosure. (Comp. Stat. ch. 64, § 11. 
 Gen. Laws, ch. 75, § 11.) 
 
 An action for the recovery of real property, against a person in 
 possession or in receipt of the rents and profits tliereof, cannot be 
 prejudiced by an alienation made by such person, either before or 
 after tlie commencement of the action ; but in sucli case, if the 
 defendant have no property sufficient to satisfy the damages 
 recovered for the withholding of possession, such damages may 
 be collected against the purchaser. (Comp. Stat. ch. 64, §13. 
 Gen. Laws, ch. 75, § 13.) 
 
 The courts of Minnesota, in conformity to the general rule on 
 the subject, hold that a mortgagor cannot, after forfeiture, main- 
 tain an action against a mortgagee in possession for the recovery 
 of the mortgaged premises. Atwater, J., said: "In ejectment it 
 is well settled that the plaintiff can only recover on the strength 
 of his own legal title. He must have the right of possession, which 
 must be of some duration, and exclusive. The only inquiry, there- 
 fore, which seems pertinent in this case is, whether the legal title 
 and right of possession of the mortgaged premises remains in the 
 mortgagor after forfeiture of the condition. For the reason of the 
 rule above stated' seems to be that an action will not be sustained 
 
724 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 against the mortgagee to oust him of possession, when he might 
 immediately turn round, and by an action to foreclose his mort- 
 gage, regain possession." (Pees v. CAadderdon, 4 Minn. li. 499, 
 501, 502. And vide Hexjward v. Judd, lb. 485.) 
 
 Under the Minnesota statutes it is held, that, in an action to 
 recover the possession of real property, the plaintiff may unite a 
 cause of action for the value of the use of tlie premises by defend- 
 ant, or damages for withholding possession. In such action the 
 plaintiff must allege title or right of possession in himself at the 
 time of the commencement of the action, and a failure so to do 
 may be taken advantage of by demurrer. {Armstrong v. Hinds, 
 8 Minn. E. 254.) 
 
 A complaint in ejectment, under the Minnesota practice, alleges 
 a good cause of action by stating the fee in the plaintiff, and that 
 the defendant unlawfully and unjustly holds possession, alleging 
 entry after the plaintiff acquired the fee. And, under the Code, 
 it is held, that equitable defenses may be interposed to an action 
 of ejectment. But to prevail over the legal title, in the absence 
 of any fraud, mistake or unfair dealing in the person holding the 
 same, the equities on the part of the defendant must be shown to 
 be strong, clear and decisive, and such as would entitle him to a 
 conveyance on a bill iiled fot* that purpose. It was held, further, 
 in the same case, that notice to quit is in general necessary, when- 
 ever the tenant enters into possession with the assent of the land- 
 lord, no definite period being iixed for the continuance of tho 
 possession ; but the case of vendor and vendee is an exception to 
 the general rule, though the latter, enter into possession nnder a 
 contract of purchase with the consent of the former. In such ease 
 the vendor may maintain ejectment against the vendee without a 
 previous notice to quit. If a demand and refusal were necessary 
 to be shown in order to the plaintiff's right to recover, they should 
 be alleged in the plaintiff's complaint, as they are material facts. 
 {MoClane v. White, 5 Minn. E. 178.) 
 
 Where a complaint in ejectment alleged that the, plaintiffs were 
 the absolute owners in fee of the land claimed, that the defendant 
 was in the actual possession thereof, that the plaintiffs had de- 
 manded in writing of the defendant that he surrender possession 
 thereof to them, that he had refused to do so, and that he wrong- 
 fully and unlawfully withheld possession, — the court held, that 
 Buch complaint contained sufficient facts to entitle the plaintiffs to 
 
EJECTMENT IN MINNESOTA. 725 
 
 recover, and should be sustained. ( Wells v. Masterson, 6 Minn. 
 E. 566.) 
 
 Considerable litigation has been had nnder the provisions of the 
 Minnesota statute authorizing an action to determine claims to 
 veal property. Under this statute the courts hold, that posses- 
 sion of the plaintiff (by himself or tenant), and an adverse claim 
 by the defendant, are the onlj' facta required to constitute a cause 
 of action. The action is declared not to be brouglit to determine 
 the plaintiff's title, but the defendant's claim. Such seems to be 
 tile language and meaning of the statute. The plaintiff must, in 
 such case, in order to recover, prove his possession. The burden 
 is tlien on the defendant to prove his adverse claim. In such an 
 action the title or right of a third party cannot properly be liti- 
 gated, and, if it could, the fact that such third party had a well- 
 founded claim or title would be no justification of a defendant for 
 making an unfounded or false claim. Possession is jpriTna facie 
 evidence of title, and in all cases may ripen into title, and every 
 false or unfounded adverse claim is a trespass on the rights of the 
 person in possession, which no third party has a right, either 
 morally or legally, to commit. Whether possession is legal is a 
 question that concerns onlj' him in possession and the legal owner 
 or person legally entitled to the possession, and neither the law 
 nor public policy will allow those who have no interest in the 
 question to call on him who is prima facie owner for proof of the 
 validity of his claim. If a defendant's claim is unjust, it should 
 not be supported, whatever may be the rights of the plaintiff as 
 against third parties. ( Wilder v. The City of St. Paul, 12 Minn. 
 E. 192. And mde State v. Fish, 2 ib. 153.) The statute clearly 
 intends that any one who has the actual possession of land, and 
 consequently is prima facie the owner of the same, may, upon 
 that fact alone, institute an action against any one who casts a 
 cloud upon his title. The actual possession of the land is the only 
 fact necessary to constitute a cause of action under the statute ; 
 and it is unnecessary to plead all the facts upon which the 
 plaintiff's right to possession is founded. {State v. Fish, supra.) 
 There may be a common-law dedication of land for a public 
 landing or levee. Such dedication does not operate as a grant, 
 but as an estoppel in pais of the owner of the fee from asserting 
 a right of possession inconsistent with the uses and purposes for 
 which the dedication was made. The law applicable to the dedi- 
 
726 LAW. OF EJECTMENT ANV ADVERSE ENJOYMENT. 
 
 cation of Iiigliwajs applies with equal force to the dedication of 
 public landings, and the principle, so far as respects the right 
 of the owner to disturb the use, rests on the same ground in both 
 cases. A party having no title to or interest in lands may, by his 
 deed, estop himself from questioning the validity of his title, or 
 denying tliat he had authority to convey the fee, or devote any 
 interest or estate to public use at the time of the sale or dedica- 
 tion. "Where land is devoted to public use by a common-law 
 dedication thereof, the public, not being entitled to the fee, can- 
 not require a party claiming the fee, witliout disturbing or ques- 
 tioning the public easement, either to establish or defend his title; 
 but where a claimant tlireatens to invade the public rights at a 
 time and under circumstances unfavorable to their defense, a city 
 or village, representing the people, may maintain an action to have 
 the riglits of the public and the adverse claim determined. {The 
 Village of Mankato v. Willard, 13 Minn. E. 13.) 
 
 In respect to the provisions of tlie statute relating to new trials 
 in actions concerning real property; the courts hold that the statute 
 only cuts off the common law right, that the defeated party in 
 ejectment had to contest the right of possession as often as he saw 
 lit, until arrested by a court of chancery. The statute limits this 
 right to two trials, and declares the second judgment final, 
 which means final so far as to' bar another action for the same 
 cause, but, like all other final judgments, it may be reviewed 
 for errors committed on the trial. {Baze v. Arper, 6 Minnesota 
 K. 220.) 
 
 It has been held that the plaintiff in the action to recover real 
 property is not entitled to a second trial, under the provisions of 
 the statute respecting new trials in such actions. Berry, J., said : 
 " "Whether each party ought or ought not, in reason, to be 
 entitled to a new trial in actions of ejectment, the theory of 
 our law on the subject seems to be that where the question of title 
 has been once fairly litigated according to the course of practice 
 in the courts, the defendant, the party in possession, shall not be 
 harassed by a second trial. "When the plaintiff institutes his 
 action he ought to know whether he has any title, and what it is, 
 and our statute does not see fit to allow him to make repeated 
 experiments at the expense, and to the inconvenience, of the 
 defendant, unless he can bring himself within the rules applicable 
 to other civil actions." {Howes v. Gillett, 10 Minn. E. 397, 401.) 
 
EJECTMENT IN IOWA. 727 
 
 In the state of Iowa an action for the recovery of real property 
 is commenced and prosecuted lilce other civil actions in the state. 
 The venue in the action is local, that is, the action must be brought 
 in the county in wliich the subject of tlie action, or some part 
 thereof, is situated ; but for good legal reasons the venue may be 
 changed by the court in wliich the action is brought, (lievised 
 Laws of 1860, ch. 118, §§ 2795, 2803.) 
 
 Every action must be prosecuted in the name of the real party 
 in interest, and all persons having an interest in the subject-mat- 
 ter of the action, and in obtaining the relief demanded, may be 
 joined as plaintiffs, so far as real actions are concerned. And 
 when in an action for the recovery of real property, any person 
 having an interest in the property applies to be made a party, the 
 court may order it to be done by the proper amendment. (R. L. 
 ch. 117, §§2757, 2759, 2766.) 
 
 Any person liaving a valid subsisting interest in real property, 
 and a right to the immediate possession tliereof, may recover the 
 same by action, which may be brotight against any person acting 
 as owner, landlord or tenant of the property claimed. The 
 plaintiff's petition in the action need but state generally, without 
 stating the facts constituting the right, that the plaintiff is 
 entitled to the possession of the premises, particularly describing 
 thein, also the quantity of his estate, and the extent of his interest 
 therein, and that the defendant unlawfully keeps him out of pos- 
 session, and the damages, if any, wliich lie claims tor withholding 
 the property ; but if he claims pther damages than rents and 
 profits, he must state the facts constituting the cause thereof. (R. 
 L. ch. 144, §§ 3569, 3570.) 
 
 Whenever it appears that the defendant in the action is only a 
 tenant, the landlord may be substituted, notice thereof being given 
 him, as in an original action. And when the defendant is a non- 
 resident, having an agent of record for the property in the state, 
 service may be made upon such agent in the same manner and 
 with the like effect as though made on the principal. (R. L. ch. 
 144, §§ 3571, 3572.) 
 
 The answer of the defendant, and of each, if more than one, 
 must set forth what part of the land he claims, and what interest 
 he claims therein, generally, and without the facts constituting 
 the right, and if as a mere tenant, the name and residence of his 
 landlord, and need state nothing more than this. The court may 
 
728 LAW OF EJECTMENT AKD ADVERSE ENJOYMENT. 
 
 grant continuances in cases of this nature, for reasons of less 
 importance than tliose required to be set forth in ordinary civil 
 actions. Where tlie defendant makes defense, it is not necessary 
 to prove him in possession of the premises. Tiie plaintiff cannot 
 recover for the use and occupation of the premises for more than 
 six years prior to the commencement of the action. And when 
 the plaintiff shows himself entitled to the immediate possession of 
 the premises, judgment will be entered, and a writ of possession, 
 issued accordingly. (R. L. ch. 147, §§ 3573-3577.) An action for 
 the recovery of real property against a person in possession can- 
 not be prejudiced by any alienation made by such person, either 
 before or after the commencement of the action. But if the 
 interest of the plaintiff expire before the time in which he could 
 be put in possession, he can obtain a judgment for damages only. 
 (Tl. L. ch. 144, §§ 3578, 3579.) 
 
 Where there is no proof against some of the defendants, the 
 court may order a discontinuance as to them, before the testimony 
 in the case is closed, and where there are two or more plaintiffs or 
 defendants, any one or more plaintiffs may recover against one or 
 more of the defendants', the premises, or any part thereof, or any 
 interest therein, or damages according to the rights of the 
 parties ; but the recovery cannot be for a greater interest than that 
 claimed. (R. L. ch. 144, §§ 3580, 3581.) 
 
 Judgments in proceedings of this nature are as conclusive as 
 those in actions relating to personal property ; but this provision 
 is intended to apply only to interests existing at the time of the 
 trial, and is not intended to prevent a new action to test the 
 validity of rights acquired subsequently to the former trial. (R. L. 
 ch. 144, §§3582, 3583.) 
 
 The court in its discretion may grant a new trial on the appli- 
 cation of a party or those claiming under him, made at any time 
 within two years after the determination of the former trial. If 
 the application for a new trial is made after the close of the term 
 at which the judgment was rendered, tlie party obtaining a new 
 trial must give the opposite party ten days' notice thereof before 
 the term at which the action stands for trial. The result of such 
 new trial, if granted after the close of the term at which the first 
 trial took place, will in no case affect the interest of third persons 
 acquired in good faith for a valuable consideration since tlie 
 former trial. But the party who, on such new trial, shows him- 
 
EJECTMENT IN IOWA. 729 
 
 self entitled to lands wliicli have thus passed to a bona fide pur- 
 chaser, may recover the proper amount of damages against the 
 other party either in the same or a subsequent action. Tlie party 
 who has been successful in such new trial may (if the case require 
 it) Iiave his writ of restitution to restore him his property. (R. L. 
 ch. 144, §§3584-3588.) 
 
 In an action against a tenant the judgment will be conclusive 
 against the landlord who has received notice as before provided. 
 If not notified, he will be regarded as a defendant who has not 
 been served with tlie original notice, and must be treated accord- 
 ingly. (R. L. ch. 144, §§ 3589, 3590.) 
 
 The plaintiff in an action to recover real property must recover 
 on the strength of his own title. (R. L. cli. 144, §3591.) 
 
 The court, on motion, and after notice to the opposite partj', may, 
 for cause shown, grant an order allowing the party applying there- 
 for to enter upon the land in controversy, and make survey and 
 admeasurement thereof for tlie purposes of the action. Tlie order 
 must describe the property, and a copy thereof must be served 
 upon the owner or person having the occupancy and control of the 
 land. (R. L. ch. 144, §§ 3592, 3593.) 
 
 The verdict may specify the extent and quantity of the plaintiff's 
 estate, and the premises to which he is entitled, with reasonable 
 certainty, by metes and bounds, and other sufficient description, 
 according to the facts proved. A general verdict in favor of the 
 plaintiff, without such specifications, entitles the plaintiff to the 
 quantity of interest or estate in the premises as set forth and de- 
 scribed in the petition. "Where a plaintiff in an action of this 
 nature is entitled to damages for withholding or using, or injuring 
 his property, the defendant may set off the value of any permanent 
 improvements made thereon to the extent of the damages, unless 
 he prefers to avail liimself of the law for the benefit of occupying 
 claimants. And in case of wanton aggression on the part of the 
 defendant the jury may award exemplary damages. A tenant in 
 possession in good faith, under a lease or license from another, is 
 not liable beyond the rent in arrear at the time of suit brought for 
 the recovery of the land and that which may afterward accrue 
 during the continuance of his possession. And under certain 
 circumstances the defendant may have any crop planted or sowed 
 on the premises retained to him by giving a bond as provided by 
 the statute. (R. L. ch. 144, §§ 3594-3600.) 
 92 
 
730 LAW OF EJECTMENT AND ADVERSE ENJOTMENT. 
 
 An action of the same nature may be brought by one having 'a 
 reversionary interest, or by one in or ont of possession, against 
 another who claims title to real property, althongh the defendant 
 may not be in the possession thereof, for the purpose of determin- 
 ing and quieting the question of title. And if the plaintiff is in 
 possession he raaj' file a petition setting forth liis estate, whether 
 of inheritance for life or years, and describing the premises, and 
 averring tliat he is credibly informed and believes that the deJend- 
 ant makes some claim adverse to the estate of the petitioner, and 
 praying that he may be notified to show cause why he should not 
 bring an action' to try the alleged title, if any, and thereupon the 
 court must order notice to be given to the defendant; and upon 
 the return of such order of notice, duly executed, if the defendant 
 so notified shall make default, or having appeared shall disobey 
 the lawful order of the court to bring an action and try the title, 
 the court will enter a judgment that he be forever debarred and 
 estopped from having or claiming any right or title adverse to the 
 petitioner, and those claiming by or through him, to the premises 
 described. If the defendant shall appear and disclaim all right 
 and title to the petition he will recover costs; if he shall claim 
 title he must, by answer, show cause why he should not be required 
 to bring an action and try such title, and the court must make 
 snch judgment or order respecting the bringing and prosecuting 
 of such action as may seem just. In other particulars the rules 
 prescribed respecting actions to recover real property will apply in 
 these cases. (R. L. ch. 144, §§3601-3604.) 
 
 - In an action for the recovery of dower before admeasurement, 
 or by a tenant in common, or joint-tenant of real property against 
 his co-tenant, the plaintiff must show, in addition to his evidence 
 of riglit, that the defendant either denied the plaintiff's right, or 
 did some act amounting to snch denial, precisely as is the law in 
 Minnesota. (R. L. ch, 144, § 3605.) 
 
 The action to recover real property is frequently called in Iowa 
 an action of right, and in this action it is held that the plaintiff 
 must recover upon the strength of his own, and not on the weak- 
 ness of his adversary's title. He must show the legal title to be 
 in himself. And in all such cases the legal title will prevail 
 against an equitable one. {Huntington v. Jewett, 25 Iowa R. 249, 
 Page v. Cole, 6 ib. 153. Ilarman v. Steinman, 9 ib. 112. Farley 
 V Goooher, 11 ib. 570. Allott v. Chase, 13 ib. 453. Allyn y. 
 
EJECTMENT IN IOWA. 731 
 
 Johnson, lb. 604. Armstrong v. Pierson, 4 Green's E. 45.) But 
 it is held that the statute provides a remedy to recover the posses- 
 sion of land, and also a remedy to determine the title. The statute 
 therefore supersedes the action of ejectment, and enlarges the com- 
 mon-law writ of right. To enable a plaintiff to recover in such 
 action, it must appear that the defendant acted as owner, landlord 
 or tenant of the property claimed ; and, if as tenant, that he was 
 in possession. Where the defendant pleads to an action of riglit, 
 in the form provided by the statute, he virtually admits himself in 
 possession ; and, as possession is not denied by such a plea, it need 
 not be proved. {Kerr v. Li,gKton, 2 G-reen's E. 196.) 
 
 As the law now stands in the state of Iowa, it is well settled 
 that a defendant in an action of right (or for the recovery of real 
 estate) may set up an equitable defense, that is, any matter which 
 would authorize a court of equity to grant entry against alegal 
 liability, but which at law could not have been pleaded in bar. 
 He may even have positive or affirmative relief for matter purely 
 equitable, by way of counter-claim or cross-demand. But with 
 reference to the manner such defenses^ when made, are to be 
 treated and disposed of, it has been suggested that in all such 
 cases the equitable defense will be preliminarj' to the plaintiff's 
 cause of action, and addressed to the court; not involving ordina- 
 rily any change of forum in order to settle the ultimate rights of 
 the parties. Undoubtedly a change of forum would be authorized 
 where the facts disclosed in the plaintift''s petition are greatly 
 involved, and, in the nature of the redress sought, would properly 
 invoke the equity rather than the law jurisdiction of the court. 
 In such case, if commenced as an ordinary. action, a transfer to the 
 equity docket would be ordered ; and so, where the case has been 
 commenced as an equitable suit, and the facts show that it should 
 have been docketed as a law action, the transfer will be ordered. 
 ( Vide Hosiers v. Va7i Dam, 16 Iowa R. 175. Sypher v. McHenry, 
 12 ib. 585. Yan Olman v. Stafford, 16 ib. 186. Kramer v. Gurfee, 
 lb. 434.) 
 
 It is held to be a good equitable defense in an action of right, 
 that the defendant foreclosed and took possession of the premises 
 under and by virtue of a contract, which he had been at all times 
 ready to perform, with the grantor of the plaintiff, of which the 
 plaintiff had notice at time of his purchase. ( Warren v. Crew, 
 22 Iowa R. 315.) And the unsuccessful party in an action of 
 
732 LAW OF EJECT2IENT AXD ADVERSE ENJOYMENT. 
 
 riglit is entitled to the benefit of the provisions of the statute 
 relating to new trials in such cases, as well •where the defense is 
 equitable in its nature as where it is legal. {Butterjield v. 'Walsh, 
 25 Iowa E. 263.) 
 
 Where the defendant in an action for the recovery of real prop- 
 erty relies upon the statute of limitations, and also sets np a claim 
 for improvements made by him during his possession, he may, 
 even after the evidence in support thereof has been introduced, 
 ■withdraw such claim, and proceed with his other defenses. (Booth 
 V. Small, 25 Iowa E. 177.) 
 
 It is held in Iowa that a right of dower, where the dower is 
 unassigned, cannot be set up as a defense in an action of right 
 against the person holding the fee of the land. The widow's 
 right is regarded as but a right in action. She is not an heir, 
 neither is she a tenant in common with the heirs. She has no 
 estate nntil dower is assigned. Her right is to hold possession of 
 the premises in which she may be entitled to dower for the given 
 time of her quarantine, and, if dower is not set out, then sue for it. 
 In this respect the rule is held to be the same in Iowa as it ifs at 
 common law. {Gavender v. Smith, 8 Iowa E. 360.) 
 
 In an action of right, where the plaintiff proves himself entitled 
 to only two-thirds of a lot, the verdict should correspond with the 
 evidence, and not be general for the plaintiff. A person owring 
 an undivided interest in land may recover to the extent of his 
 interest in the action of right. {Hughes v. IloUiday, 3 Green's 
 E. 30.) 
 
 In an action of right in Iowa, it is held that the plaintiff, where 
 he holds the legal title and right of possession to real estate, may 
 recover for the use and occupation of the land, as well as the title 
 and possession ; that is to say, the mesne profits may be secured 
 in the same suit which determines the title. And, under the sec- 
 tion of the statute in relation to occupying claimants, a defendant 
 in an action of right can at any time, while in possession of the 
 premises in controversy, file his petition to have the value of im- 
 provements made by him ascertained, and to obtain payment of 
 the same before surrendering possession. {Dunn v. Starlcweather, 
 6 Iowa E. 466.) 
 
 It is held that, in an action of right commenced against the 
 ancestor, and to which the heirs are made parties after his death, 
 the heirs are not liable for damages for the rents and profits while 
 
EJECTMENT IN MISSOUSI. 733 
 
 t3;e ancestor was in possession of the premises. The lieirs are on]y 
 liable for such time as they are shown to have been in possession. 
 In snch a case, if the plaintiff seeks to recover damages from tlie 
 ancestor, his administrator should be made a party with the heirs, 
 or a separate action should be instituted against him. (Cavender 
 V. Smith, 8 Iowa K. 360.) 
 
 . It will be observed that the statute of Iowa in respect to the 
 action to recover real property is, in many of its provisions, but a 
 re-enactment of the common law, or of principles so long settled 
 by the decisions of the courts as to become elementary. Indeed, 
 it is admitted by the commissioners who reported the civil code, 
 that in some instances the current practice is in accordance with 
 what they propose^ to be enacted by statute, and the statute seems 
 to have been passed in order to make clear what may have been 
 before in some doubt. (Report on Civil Code, 334.) 
 
 The cases in which the action for the recovery of real property 
 may be maintained in the state of Iowa are stated in a previous 
 chapter. {Ante, ch. 3.) 
 
 CHAPTEE XLI. 
 
 THE ACTION FOE THE EECOVEET OF REAL PKOPEETT IN THE SEV- 
 
 EEAL STATES THE PKACTICE IN MISSOUEI, KANSAS, NEBEASKA 
 
 AND NEVADA. 
 
 In the state of Missouri, the action for the recovery of real 
 property is called the action of ejectment ; and the statute pro- 
 vides that two or more tenants in common may join in the action, 
 and jointly prosecute and sustain such action for the recovery of 
 the estate by them owned in common. The action of ejectment 
 must be prosecuted in the real names of the parties thereto, and 
 must be brought against the person in possession of the premises 
 claimed. And the person from or through whom the defendant 
 claims title to the premises may, on motion, be made a co-defend- 
 ant. (Gen. Stat. 186.5, ch. 151, §§ 3, 4, 5.) 
 
 It is made sufScient by statute for the plaintiff to aver in the 
 petition that (on some day therein to be specified) he was entitled 
 to tiie possessson of the premises (describing them), and, being so 
 entitled to the possession thereof, that the defendant afterward 
 
734 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT, 
 
 (on some day to be stated) entered into sncli premises, and unlaw- 
 fully withholds from the plaintiff the possession thereof, to his 
 damage in any sum he may claim. And all pleadings and pi*o- 
 ceedings in tlie action are to be conducted as in other civil actions, 
 except where it is otherwise prescribed by statute. (Gen. Stat, 
 ch. 151, §§ 6, 7.) 
 
 To entitle the plaintiff to recover, it is made sufficient for him 
 to show that, at the time of the commencement of the action, the 
 defendant was in possession of the premises claimed, and that the 
 plaintiff had such right to the possession thereof as is declared by 
 the statute to be sufficient to maintain the action. (Gen. Stat. 
 ch. 151, § 8.) 
 
 If the action is brought by a joint-tenant or tenant in common 
 against his co-tenant, the plaintiff is required to show on the trial 
 that the defendant actually ousted him, or did some act amounting 
 to a total denial of his right as such co-tenant ; and this in addi- 
 tion to the other facts which he is required to establish. (Gen. 
 Stat. ch. 151, § 9.) 
 
 When there are two or more plaintiffs, any one or more may 
 recover any interest they may be entitled to, in the same manner 
 as if they had brought separate actions ; and it will not be any 
 objection to a recovery in such action that any one or several of 
 the plaintiffs do not prove any interest in the premises claimed, 
 but those entitled may have judgment, according to their rights, 
 for the whole, or such part or portion as he, she or they might 
 have recovered if they had brought separate actions. (Gen. Stat, 
 ch. 151, § 10.) 
 
 When, in any action for the recovery of the possession of prem- 
 ises, any lands shall be claimed -by virtue of a location, in lieu of 
 other lands injured by earthquakes, the certificate of new location 
 granted by the recorder of land titles, and the patent used in con- 
 sequence, will be on^j prima facie evidence of title in the grantee 
 therein named ; and it is made lawful in such case for the adverse 
 party to rebut such evidence, by proof that the grantee in such cer- 
 tificate or patent named was not, at the time the same or either of 
 them issued, the owner of the injured lands in lieu of which the 
 said certificate or patent issued ; and the title to the land located 
 by virtue of such certificate or patent will be determined accord- 
 ing to the rights of the parties to the land, as located \>y virtue 
 thereof. (Gen. Stat. ch. 151, §§ 11, 12.) 
 
EJECTMJSNT IN MISSOUEI. T35 
 
 If the plaintiff prevail in the action he may recover damages 
 for all waste and injury, and, by way of damages, the rents and 
 profits down to the time of assessing the same, or to the time of 
 the expiration of the plaintiff's title, under the following limita- 
 tions: First, when it shall, not be shown on the trial that the 
 defendant had knowledge of the plaintiff's claim prior -to the com- 
 mencement of the action, such recovery must be only from the 
 time of the commencement of the action ; second, when it shall 
 be shown on the trial that the defendant had knowledge of the 
 plaintiff's claim prior to the commencement of the action, and 
 that such knowledge came to the defendant within five years next 
 preceding the commencement of the action, such recovery will be 
 fi'om the time that such knowledge came to tlie defendant ; third, 
 when it sliall be shown on the trial that knowledge of the plaint- 
 iff's claim came to the defendant more than five years prior to the 
 commencement of the action, sucli recovery will only be for the 
 term of five years next preceding the commencement of the action. 
 (Gen. Stat. ch. 151, § 13.) 
 
 If the right of the plaintiff to the possession of the premises 
 expire after the commencement of the suit, and before the trial, 
 the verdict must be returned according to the fact, and judgment 
 will be entered only for the damages and costs. If the plaintiff 
 prevail 'in his action, and it appear in evidence that the rigiit of 
 the plaintiff' to the possession is unexpired, the jury must find the 
 monthly value of the rents and profits ; in which last case the 
 judgment will be for the recovery of the premises, the damages 
 assessed and th^accruing rents and profits, at the rate found bj'' 
 tlie jury, from the time of rendering the verdict until the posses- 
 sion of the premises is delivered to the plaintiff. And where the 
 judgment for the plaintiff is botli for the recovery of the posses- 
 sion and of damages, the plaintiff may have a writ of possession, 
 which shall command the officer to whom directed to deliver to 
 the plaintiff possession of the premises, and must also command 
 him to levy and collect the damages and costs as in execution on 
 judgment in other civil actions. And where the judgment for the 
 plaintiff is only for damages and costs, execution may be had 
 thereon, as on judgments in other civil actions. (Gen. Stat. ch. 
 1.5], §§14-18.)' ^ 
 
 No appeal will be allowed nor supersedeas granted on a writ of 
 error in favor of the defendant, unless the recognizance be in a sum 
 
736 LAW OF EJECTMENT AND ADVERSE ENJOTilENT. 
 
 and with security sufficient to secure the payment of all damages 
 and accruing rents and profits, and with condition to stay waste, 
 in addition to the other conditions required by law in snch cases. 
 (Gen. Stat. ch. 151, § 19.) 
 
 If a judgment or decree of dispossession shall be given in an 
 action for the recovery of possession of premises, or in any real 
 action in favor of a person having a better title thereto, against a 
 person in the possession (held by himself or by his tenant) of any 
 lands, tenements or hereditaments, such person may recover in a 
 court of competent jurisdiction compensation for all improvements 
 made by him in good faith on such lands, tenements or heredita 
 ments, prior to his having had notice of such adverse title. (Gen. 
 Stat. ch. 151, §20.) 
 
 The plaintiff, in his petition, must set forth the nature of liis 
 title, the length of his possession, and the kind and value of the 
 improvements made ; and must also aver therein tliat he entered 
 into the possession of the land, believing that he had good title 
 thereto, and that he made the improvements specified in the peti- 
 tion in good faith, under tlie belief that he had good title to the 
 land, and must be verified by his affidavit thereto annexed ; and 
 an injunction may be granted to stay the plaintiff from taking 
 possession of the land until the value of the imjirovements is ascer- 
 tained, or until the further order of the court. The plaintiff may, 
 in his answer thereto, ask for leave to relinquish the land to tlie 
 occupying claimant, and to recover the value thereof, aside from 
 the improvements; and if the value of the improvements exceed 
 the value of the land, aside from the improvements, the court may 
 order that the occupying claimant shall, by a time to be specilied 
 in the order, take the land, and pay the ascertained value thereof 
 to the plaintiff; and in default of such payment the plaintiff may 
 take possession of the land, discharged of all claim of such occupy- 
 ing claimant. In all cases where tlie occupying claimant shall be 
 adjudged to take the land and pay the value tliereof, the plaintiff 
 must, on payment of the money, make to the occupying claimant 
 a conveyance thereof, with general warranty. And if the value 
 of the land, aside from the improvements, exceed the value of the 
 improvements, the court may, in its discretion, order either that 
 the plaintiff shall pay for the improvements before he shall be 
 allowed to take possession of the land, or that the land shall be 
 divided bstween the occupying claimant and the plaintiff, accord- 
 
EJECTMENT IN MISSOVBI, 737 
 
 ing to their respective rights. But no partition can be ordered or 
 adjudged if the plaintifl" insists upon his right to retain the land. 
 If the plaintiff shall give the occupying claimant notice, in writing, 
 of his claim, and of the nature thereof, such notice will bar the 
 occupying claimant, and all persons claiming from or through him, 
 any compensation for improvements made after such notice. And 
 no occupying claimant can recover compensation twice for his 
 improvements; and in all cases where the occupying claimant 
 shall be paid for his improvements by any person other than the 
 proprietor of the better title, such person will be iuvested with the 
 same rights, and have the same remedy for the recovery thereof as 
 is given to the occupying claimant. (Gen. Stat. ch. 151, §§ 21-29.) 
 
 Executions or writs for the delivery of possession of real property 
 may issue to the sheriff of the county where the same, or some part 
 thereof, is situate, and the same will be governed, in all respects, 
 by the rules governing executions in ordinary cases, so far as the 
 same may be applicable. (Gen. Stat. ch. 151, § 32.) 
 
 The provisions of the statute in respect to actions concerning 
 real property are given here in the order in which they stand upon 
 the statute book, and it will be convenient to have the decisions 
 of the court under the statute noted in the same or a similar order. 
 
 In respect to making parties defendants in an action of eject- 
 ment, it has been held, that where the person from or through 
 whom the defendant claims title to the premises has, on motion 
 of the defendant, been made a co-defendant, the plaintiff is not 
 entitled to dismiss the suit as to such co-defendant. {Hayden v. 
 Stewart, 27 Mo. E. 286.) And it has been further held, that if 
 the tenant be induced, by the false representations of a stranger 
 claiming to be the owner of the demised premises, to attorn to 
 him, the landlord defending with the tenant in ejectment will not 
 be estopped from denying the title of such stranger. {Schults v. 
 Arnot, 33 Mo. E. 172.) 
 
 "Where the plaintiff in an ejectment suit dies, the suit may be 
 revived in the name of his heirs or devisees. And although 
 under the new practice a party may be substituted on motion, yet 
 it can only be on the voluntary appearance of the adverse original 
 party, or after the service upon such party of a scire fadas. {Fine 
 V. dray, 19 Mo. E. 33.) 
 
 In a declaration in ejectment, the Missouri courts hold that the 
 description of the premises contended for must bo such as to 
 93 
 
T38 LAW OF EJECTMENT AND ADVERSE ENJOYHIENT. 
 
 enable the jury to identify them with the description contained 
 in the deeds upon which the plaintiff founds his claim ; and other 
 evidence is inadmissible to identify the premises described in the 
 declaration with those described in the deed. {Newman v. Law- 
 less, 6 Mo. E. 279.) And it is also held that the statute of Mis- 
 souri regulating ejectments requires the plaintiff to allege in his 
 declaration that he is legally entitled to the possession of the 
 premises claimed ; and, where the declaration simply charged 
 that the plaintiff was legally entitled to the premises, it was held 
 that it was bad, even after verdict, the avowal in the declaration 
 being construed to be that the plaintiff was the legal owner of the 
 land ; and, for aught was charged, that might be true, and the 
 plaintiff have no right to the possession. [Jamison v. Smith,, 
 4 Mo. E. 202.) 
 
 In an action of ejectment the issue to be tried is the plaintiff's 
 right to the possession of the premises sued for, and upon the trial 
 of the general issue the defendant may avail himself of a defense 
 that the plaintiff had not the present right of possession. [Carter 
 \. Scaggs, 38 Mo. E. 302.) 
 
 Law and equity being now blended by the practice in Missouri, 
 an equitable title arising out of a contract for the sale of land is a 
 defense to an action of ejectment instituted to recover possession 
 of the land. Possession of land under a contract of sale and pay- 
 ment of the purchase-money is held to be a good defense to an 
 action brought by the alienor for the possession. [Tiheau v. 
 Tiheau, 19 Mo. E. 78.) But it has been held that, where a patent 
 was obtained under such circumstances as would make the grantee 
 in it a trustee for another, such circumstances must be set up in 
 the answer to an action for the recovery of the possession of the 
 land with the same particularity that would be necessary in a bill 
 in chancery. [Carman v. Johnson, 20 Mo. E. 108. And vide 
 Harris v. Yinyard, 42 ib. 568.) 
 
 It is held that the rule of the common law, that the defendant 
 in an action of ejectment may show an outst9,nding title in a third 
 person to defeat the suit of the plaintiff, is not changed by the 
 Missouri statute regulating the action of ejectment. [Ourno v. 
 Jarois, 6 Mo. E. 330.) But, in order that a defendant may defeat 
 a recovery in ejectnient by showing an outstanding title in a third 
 person, such outstanding title must be a present subsisting and 
 operative title, and such an one as the owner could recover on if 
 
EJECTMENT IN MISSOURI. 739 
 
 ho were asserting it in an action. {MoDonald v. Schneider, 26 
 Mo. E. 405. Worcum v. D'(Euch, 17 ib. 98.) The title of a 
 mortgagee, after forfeiture, is held to be such an outstanding title 
 as will prevent a recovery in ejectment. {Meyer v. Cavipbell, 
 12 Mo. R. 603.) But a mortgage more than twenty years old is 
 not such an outstanding title as will defeat the action of ejectment 
 without any evidence in relation to the possession of the mort- 
 gaged premises, or of the present existence of the mortgage debt. 
 (Moreau v. Betchemendy, 18 Mo. E. 522.) 
 
 "When the plaintiff in ejectment shows, that whatever title the 
 defendant may have had has passed by mesne conveyances to him- 
 self, it is not competent for the defendant to set up an outstanding 
 title in a third person. {Mathews v. Lecompte, 24 Mo. E. 545.) 
 
 When the defendant sued in ejectment by a tenant in common 
 sets np an adverse possession, it is unnecessary for the plaintiff to 
 show a demand for possession previous to suit. {Harrison v. 
 Taylor, 33 Mo. E. 211.) 
 
 When an action of ejectment is brought against several, and it 
 appears tliat their possession is not joint, but several and adverse, 
 of separate portions of the tract claimed, the plaintiff may be 
 required to elect against which of the defendants he will proceed 
 to take judgment. {Keene v. Bar-nes, 29 Mo. E. 377.) 
 
 It has been held that an action of trespass on close can only be 
 maintained whea the plaintiff is in the actual or constructive pos- 
 session of the land upon which the trespass is committed. If the 
 defendant be in the actual possession, the remedy is by ejectment, 
 in which action the plaintiff may recover damages for the waste 
 and injury, as also the rents and profits. The law in this respect 
 is held to be unchanged by the practice act. That act abolished 
 the distinction between actions, but did not give an action where 
 none existed before. {Cochran v. Whitesides, 34 Mo. E. 417.) 
 
 In an action of ejectment to recover possession of > land by one 
 claiming only an equitable estate, there can be no recovery if the 
 legal estate be outstanding. The Code of Missouri, it seems, has 
 not changed the rule in this respect. {Thompson v. Lyon; 33 Mo. 
 E. 219.) 
 
 Under the Missouri practice a plaintiff will not be permitted to 
 institute proceedings for the purpose of vacating the title to real 
 estate and vesting the same in himself, and at the same time to 
 eject the defendant and have possession of the premises awarded 
 
740 LAW OF EJECTMENT AND ADVESSE ENJOYMENT. 
 
 to Himself. Such a mode of proceeding is held to be not only 
 irregular in practice, and likely to be greatly prejudicial to the 
 rights of the parties, but is fatally erroneous, even on writ of error 
 or appeal, and cannot be sustained. {Peyton v. Rose, 41 Mo. E. 
 257. Curd v. Laoldand, 43 ib. 139. And vide Wynn v. Cwy, lb. 
 301.) And when the principal object sought to be accomplished 
 by the plaintiff is to recover possession of real estate, a proceeding 
 in the nature of a bill in equity is not the proper remedy; an 
 adequate remedy at law for that purpose has been provided in the 
 action of ejectment. {Gott v. Powell, 41 Mo. E. 416.) So, also, 
 when one is in possession of land, asserting an exclusive title 
 thereto, an action for partition cannot be maintained against him 
 by one out of possession who claims a common title thereto ; the 
 claimant must first establish his title in an action of ejectment. 
 {Lambert v. Blum^nthal, 26 Mo. E. 471.) 
 
 Tenants in common may join as parties plaintiff to enjoin the 
 enforcement of a judgment in ejectment until compensation be 
 made for improvements under the statute, although they were not 
 all made defendants in the ejectment, the possession of one tenant 
 in common being the possession of all. Thq defendant, by bringing 
 his action of ejectment against a part, and neglecting or refusing 
 to proceed against others, could not deprive them of their just and 
 legitimate rights. A contrary doctrine, it is thought, would defeat 
 the ends of justice, and destroy the equitable objects contemplated 
 by the law. Besides, it is held that, in such an action, the objec- 
 tion that some of the plaintiffs are improperly made parties to the 
 suit, if apparent on the face of the petition, must be made by de- 
 murrer, or the objection will be considered as waived. {Hussell v. 
 Defrmce, 39 Mo. E. 506.) 
 
 When the verdict and judgment in ejectment include lands to 
 which the plaintiff is not entitled, he may enter a remittitur in the 
 supreme court, and have the proper judgment entered when no 
 inquiry into extrinsic facts is necessai-y. {Fine v. The St. Louis 
 Public Schools, 39 Mo. E. 59.) And although the description of 
 the land in a judgment in ejectment be so vague that the ofiicer 
 cannot execute .the writ of possession, that will not be a ground for 
 reversal of the judgment in the supreme court. {Snyder v. Baab, 
 40 Mo. E. 166.) 
 
 In respect to the effect of a judgment in the action denominated 
 in Missouri "trespass in ejectment," the supreme court of the 
 
EJECTMENT IN MISSOURI. 741 
 
 » 
 
 United States has declared that the established rule, that, when a 
 matter has been once heard and determined in one court, as of 
 law, it cannot be raised anew and reheard in another, as in equity, 
 is not confined to cases when the matter is made patent in the 
 pleadings themselves. An^^it was held that, when the form of 
 issue in the trial, relied on as estoppel, is so vague (as it may be in 
 an action of ejectment) that it does not show precisely what ques- 
 tions were befoi'e the jury, and were necessarily determined by it, 
 parol proof may be given to show them. It was said, in the case 
 . before the. court, that the. reasons which rendered inconclusive one 
 trial in ejectment have fqrce when the action is brought in the 
 fictitious form practiced in England, and known partially among 
 ourselves ; but that they apply imperfectly, and have little weight, 
 when the action is brought in the form now used in the United 
 States, and when parties sue and are sued in their own names, 
 and the position and limits of the land claimed are described ; 
 and it was held that they have no force at all in Missouri when 
 the modern form is prescribed, and when, bystatute, one judgment 
 is a bar. And it was further decided that a state statute, enacting 
 that a judgment in ejectment — provided the action be brought in 
 a form which gives precision to the parties and land claimed — 
 shall be a bar to any other action between the same parties on the 
 same subject-matter, is a rule of property as well as of practice, 
 and, being conclusive on title in the courts of the state, is con- 
 clusive also in those of the Union. The rule concerns the stability 
 of titles to land, and it would be highly improper to adopt in the 
 federal courts a rule tending to increase litigation and unsettle 
 those titles, which is in conflict with the one prescribed by the 
 law-making power of the state. It is a matter which involves 
 something more than a mere rule of practice. It is a question 
 whether a matter which is conclusive of the title to land in the 
 state courts shall have the same effect in the federal courts ; and 
 the opinion of the supreme court of the United States is, that it 
 should. {Miles v. Caldwell, 2 Wallace's R. 35.) But in a case 
 before the same court, at an early day, in error to the district 
 court of the United States for the district of Missouri, which was 
 an action of ejectment for two lots of ground in St. Louis ; and it 
 appeared that the same claimant had several years before brought 
 ejectment for the same land, when the defendant had judgment, 
 and the judgment was affirmed by the supreme court of the United 
 
742 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 States. {Strother v. Lucas, 6 Peters' E. 763.) In the second case 
 the conrt said: "Had this case been identical with the former, as 
 to tiie merits, we . should have followed the deliberate opinion 
 delivered therein ; but, as one judgment in ejectment is not con- 
 clusive on the right of either possession or property in the prem- 
 ises in controversy, the plaintiff has a right to bring a new snit ; 
 and the court must consider the case, even if it is in all respects 
 identical with the former, though they may hold it to be decided 
 by the opinion therein. It is otlierwise when the second case pre- 
 sents a plaintiff or defendant's right, on matters of law or fact, 
 material to its decision, not before appearing in the record; it 
 then becomes the duty of the conrt to decide all pertinent ques- 
 tions arising on the record, in the same manner as if the case came 
 before them for the first time, save such as arise on evidence iden- 
 tical as to the merits." {Strother v. Lucas, 12 Peters' K. 410.) 
 
 It has been held that a judgment in an action in the nature 
 of an action of ejectment in Missouri, although for a merely 
 nominal sum, is a bar to a recovery, in a subsequent action, of 
 rents received prior to such judgment. (Stewart v. Dent, 24 Mo. 
 E. 111.) 
 
 In the state of Kansas it is provided by the act to establish a 
 code of civil procedure, that, in an action for the recovery of real 
 property, it shall be sufiicient for the plaintiff to state in his peti- 
 tion that he has a legal or equitable estate therein, and is entitled 
 to the possession thereof, describing the same with such convenient 
 certainty as will enable an officer liolding an execution to identify 
 it, and that the defendant unlawfully keeps him out of the posses- 
 sion; and it is not necessary to state how the plaintiff's estate or 
 ownership is derived. (Cen. Stat. 1868, ch. 80, §§ 127-595.) 
 
 And it is made sufficient in such action if the defendant, in his 
 answer, deny generally the title alleged in the petition, or that he 
 withholds the possession, as the case may be ; but if he deny the 
 title of the plaintiff, possession by the defendant will be taken as 
 admitted, Wlien he does not defend for the Avhole premises the 
 answer must describe the particular part for which defense is made. 
 (Gen. Stat. ch. 80, § 596.) 
 
 The action to recover real property may be commenced in a 
 court of record, by iiling in the office of the clerk of the proper 
 court a petition, and causing a summons to be issued thereon the 
 game as other civil actions, and the summons may be served in 
 
EJECTMENT IN KANSAS. 743 
 
 the same manner as in other civil actions. (Gen. Stat. ch. 80, 
 §§ 57-76.) 
 
 In an action by a tenant in common of real property against a 
 co-tenant, the plaintiff must, in addition to the other facts neces- 
 sary to be averred, state in his petition that the defendant either 
 denied the plaintiff's right, or did some act amounting to such 
 denial. (Gen. Stat. ch. 80, § 597.) 
 
 In an action for the recovery of real property, when the plaintiff 
 shows a right to recover at the time the action was commenced, 
 but it appears that his right has terminated during the pendency 
 of the action, the verdict and judgment must be accoi'ding to the 
 fact, and the plaintiff may recover for withholding the property. 
 And in an action for the recovery of real property, the party 
 against whom judgment is rendered may, at any time during the 
 term at which the judgment is rendered, demand another trial, by 
 notice on the journal, and thereupon the judgment will be vacated, 
 and the action will stand for trial at the next term. But no further 
 trial can be had in such action unless, for good cause shown, a new 
 trial be granted, or the judgment be reversed, as in other actions. 
 (Gen. Stat. ch. 80, §§ 598-600.) 
 
 When any part of real property, the subject-matter of an action, 
 is situated in any other county or counties than the one in which 
 the action is brought, a certified copy of the judgment in such 
 action must be recorded in the office of the register of deeds of 
 such other county or counties, before it will operate therein as 
 notice so as to charge third persons ; but it will operate as such 
 notice, without record, in the county where it is recorded. (Gen. 
 Stat. ch. 80, § 82.) 
 
 The statute of Kansas also provides a remedy for occupying 
 'claimants in possession of real property to obtain compensation for 
 their improvements in certain cases, the details of which are quite 
 similar to those of some of the Other western states ; and the sub- 
 stance of which is, that any occupying claimants, being in quiet 
 possession of lands, who can show a plain and connected record 
 title, or a conveyance from some person claiming title, derived 
 from the records of some public oflBce, or who hold the same 
 under a sale on execution, or a public land or tax sale, authorized 
 by the laws of the state, or under a sale and conveyance made by 
 executors, administrators or guardians, or by persons in pursuance 
 of an order or decree of court, or who have made a lona fide set- 
 
744 LAW OP EJECTMENT AND ADVEESE ENJOYMENT. 
 
 tlement and improvements upon any of the Indian lands of the 
 state, cannot be evicted or turned out of possession until paid the 
 full value of all lasting and valuable improvements made by them 
 on such lands previous to receiving actual notice, by the com- 
 mencement of suit on each adverse claim by which eviction may 
 be effected, unless such occupying claimant shall refuse to pay, to 
 the person setting up the adverse claim and proving a better title, 
 the value of the land aside from the improvements. This provision 
 of the statute, however, does not apply to persons occupying and 
 claiming lands granted to the state, or granted to .or pui-chased by 
 any company to aid in the construction of any works of internal 
 improvement in the state. 
 
 The court rendering, judgment in. any such case must, at the 
 request of either party, cause an entry on the journal of the claim 
 for improvements, when the matter will be tried by a jury as other 
 cases are tried, except that the jury must view the premises, and 
 then hear evidence, and give a verdict assessing the value of such 
 improvements, deducting for any waste conimitted by the occupy- 
 ing claimant, and for the value of the rents and profits ; and the 
 jury must also assess the value of the land at the time of the judg- 
 ment, without the improvements made thereon. If the jury report 
 a sum in favor of the plaintiif in the action for waste and. rents 
 and profits over and above such improvements, the court must 
 render a judgment for the amount in favor of the plaintiff without 
 pleadings, and issue execution thereon as in other cases ; and in 
 all such cases the plaintiff will be barred from maintaining an 
 action for mesne profits. If the jury report a sum in favor of tlie 
 occupying claimant, the adverse claimant may either demand the 
 value of the land and tender a deed for the land, or pay the excess 
 of improvements, at his election; and, if the occupying claimant' 
 refuse to pay the value of the land, a writ of possession may issue 
 in favor of the successful claimant. The 'occupying claimant can 
 in no case be evicted after applying for the value of his improve- 
 ments, except in the manner last provided. And the plaintiff 
 cannot have an execution for the possession of his property except 
 in accordance with the provisions herein stated. 
 
 The statute also provides that, when land sold by an executor 
 administrator, guardian, sheriff or commissioner of court, is after' 
 ward recovered in the proper action by any person originally 
 liable, or in whose hands the land would be liable to pay the 
 
EJECTMENT IN KANSAS. Y45 
 
 demand or judgment for which, or for whose benefit, the land was 
 sold, the plaintiff will not be entitled to the possession of such 
 land until he has refunded the purchase-money, deducting there- 
 from the value of the use, rents and profits, and injury done by 
 waste and cultivation, to be assessed under the provisions before 
 stated. (Gen. Stat. ch. 80, §§ 601-613.) 
 
 As yet but few decisions of the courts have been pronounced 
 giving construction to the statutes of Kansas'in respect to actions 
 to recover real property ; but the decisions of other states having 
 similar statutes will aid essentially in coming to. a conclusion upon 
 the subject. , , 
 
 In has been held by the supreme court of Kansas, that the 
 plaintiflf in an action to recover real property, is entitled to recover 
 if he show a permanent title to any part of the premises de- 
 scribed in his , petition, yet, not without evidence of a sufiicient 
 interest to maintain the action in the definite tract for which judg- 
 ment is rendered. When the evidence, in sjich case consisted of 
 an execution, levy, sale, order conferring the same, and sheriff's 
 deed of the whole tract described in the petition, which were void 
 as to an undefined one acre, constituting the homestead of the 
 judgment debtor, and void as to that only, and when nothing 
 appeared describing the lines, shape, or situation of that acre, it 
 was held, that the evidence was too indefinite. It seems that had 
 either party shown in the court below what specific acre was 
 occupied as the homestead, it would have been sufBcient. And it 
 was held in the same case, that in an action to recover real prop- 
 erty by a purchaser at a judicial sale from the judgment debtor, it 
 was error to reject evidence of fraud in the office making the sale, 
 and of a fraudulent combination to prevent competition thereat, 
 {Bens V. Sines, 3 Kansas R. 390.) 
 
 "Where an occupying claimant held under a purchase at a sale, 
 under an order of sale, and also held under a certificate and deed 
 of sale for taxes, and when plaintiif below brought an action to set 
 aside the sale under the order, another to set aside the tax deed 
 and certificate, and a third to recover title, in all three of which 
 actions he recovered, and where the defendants below claimed 
 their improvements under the act "for the relief of occupying 
 claimants ;" it was held that the case, as it stood in court, was as 
 though but one suit had been brought in the court below ; and 
 that, being in possession of, and holding land under, any rule for 
 94 
 
746 LAW OF EJECTMENT AND AD PERSE ENJOYMENT. 
 
 taxes, authorized by law, entitled the occupant to the benefit of the 
 provisions of the " occupying claimants' act " if his possession has 
 been obtained without fraud or collusion, and fraud or collusion 
 must be affirmatively shown, to defeat the claim. (Stebhins v. 
 Guthrie, 4 Kansas E. 353.) 
 
 In the new state of Nebraska, it is provided by their code of 
 civil procedure, that in an action for the recovery of real property, 
 it shall be sufficient^ if the plaintiff state in his petition that he 
 has a legal estate therein, and is intitled to the possession thereof, 
 describing the same, with sufficient certainty to enable an officer 
 holding an execution to identify it, and that the defendant unlaw- 
 fully keeps him out of the possession. It is not necessary to state 
 how the plaintiff's estate or ownership is derived. In this respect 
 the law of Nebraska is precisely the same as that of Kansas. 
 So also the law of Nebraska is the same as that of Kansas in 
 respect to the answer of the defendant, the proof necessary for the 
 plaintiff, the petitio% by a tenant in common against a co-tenant, 
 the recovery when the right terminates during the pendency of 
 the action, and a new trial in the action of course ; indeed it would 
 seem that the statute regulating actions concerning real property 
 in both Kansas and Nebraska, emanated from the same model, 
 and hence it is only necessary to refer to the provisions of the 
 Kansas act to ascertain all that is necessary in respect to the 
 Nebraska act. ( Vide R. S. of Nebraska, part 2, tit. 7, ch, 6, § 133, 
 tit. 18, ch. 1, §§ 626, 632.) 
 
 The action for the recovery of real property in Nebraska must 
 be brought in the county in which the subject of the action is sit- 
 uated, except if the land be an entire tract, and situated in two or 
 more counties, or if it consists of separate tracts situated in two 
 or more counties, the action may be brought in any county in 
 which any tract or part thereof is situated, unless it be an action 
 to recover the possession thereof, when, if the property be an 
 entire tract, the action may be brought in either of such counties ; 
 but if it consists of separate tracts in different counties, the posses- 
 sion of such tracts must be recovered by separate actions brought 
 in the counties where they are situated. (K. S. part 2, tit. 4, §§ 
 51, 52.) 
 
 The action to recover real property in N'ebraska is commenced 
 by filing in the office of the clerk of the proper court a petition, 
 and causing a summons to be issued thereon, the same as in other 
 
EJECTMENT IN NEVADA. 747. 
 
 civil actions, and the summons in such action is to be served in 
 the same manner as in other actions. (K. S. part. 2, tit. 5, ch. 1, 
 § 62, ch. 2, §§ 68, 81.) 
 
 Where any part of the real property, the subject matter of an 
 action, is situated in any other county or counties than the one 
 in which the action is brought, a certified copy of the judgment in 
 such action must be recorded in the clerk's oiEce of such other 
 county or counties, before it will operate therein as a notice, so as 
 to charge third persons in the subject matter thereof, as against 
 the plaintiff's title. (R. S. tit. 5, ch. 2, § 86.) 
 
 Claims to recover the possession of real property, with or without 
 damages, for the withholding thereof, and the rents and profits of 
 the same, may be united in the same petition. (Laws of 1867, 
 p. 71, § 3.) 
 
 In all these respects the statute of Nebraska is substantially the 
 same as that of the state of Kansas. 
 
 In the state of Nevada an action may be brought by any person 
 in possession, by himself or his tenant, of real property, against 
 any person who claims an estate or interest therein adverse to 
 him, for the purpose of determining such adverse claim, estate or 
 interest. If the defendant in the action disclaims in his answer 
 any interest or estate in the property, or suffer judgment to be 
 taken against him without answer, the plaintiff cannot recover costs. 
 
 In an action for the recovery of real property, when the plaintiff 
 shows a right to recover at the time the action was commenced, 
 but it appears- that his right has terminated during the pendency 
 of the action, the verdict and judgment must be according to the 
 fact, and the plaintiff may recover damages for withholding the 
 property. And, when damages are claimed for withholding 
 the property recovered,- upon which permanent improvements 
 ' have been made by a defendant or those under whom he claims, 
 holding under color of title adversely to the claims of the plaintiff 
 in good faith, the value of such improvements will be allowed as 
 a set-off against such damages. The court in which the action is 
 pending may order that the party applying may enter upon the 
 lands in suit and make a survey, the same as is the practice in 
 other western states. 
 
 A mortgage of real property is not to be deemed a conveyance, 
 whatever its terms, so as to enable the owner of the mortgage to 
 recover possession of the real property without a foreclosure and 
 
•748 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 sale. And it is provided, that an action for the recovery of real 
 property against a person in possession cannot be prejudiced by 
 an alienation made by such person either before or after the com- 
 mencement of the action. (Laws of 1869, tit. 8, ch. 3, §§ 256-265,) 
 
 It has been held by the supreme court of Nevada that the action 
 of ejectment is unknown to the system of that state, and that ten- 
 ants in common may maintain a joint-action for possession of real 
 estate under such system. {Alford v. Dewin, 1 E"ev. St. K. 207.) 
 But it was held by the same court that it is competent for a 
 defendant in ejectment to show as a defense, that, prior to the 
 bringing of the action, the plaintiff had conveyed away his title 
 to the premises claimed, or that his grantor had done so prior to 
 the conveyance by which the plaintiff claims. It was held in the 
 same case that a mere naked trespasser cannot show an outstanding 
 title in a third party, except as a means of showing the want of 
 title or right of possession in the plaintiff. {Mallett v. The Uncle 
 Sam Ooid and Silver Mining Company, 1 Nov. St. K. 188.) 
 
 In an action to determine an adverse claim to land lying on both 
 sides of a river, the defendant asked an instruction to the jury, to 
 which the whole case was submitted, " that, if they found from the 
 evidence that the plaintiff had sliown a right only to that portion 
 of the land on the north side of the river, he was not entitled to 
 recover with respect to that located on the south side," which 
 instruction was refused ; but the supreme court held that the 
 refusal was clearly error. It was questioned in the same case 
 whether the parties in an action to determine an adverse claim to 
 land under section 254 of the Practice act in force prior to the act 
 of 1869, and which is similar in that respect to the act of 1869, 
 could, as a matter of right, demand a trial by jury, and the ques- 
 tion was left undecided. ( Van Vent v. Olin, 4 Nev. St. K. 95.) 
 
 It will be observed hereafter that the statute of Nevada relating 
 to actions concerning real property is quite similar to that of Cali- 
 fornia on the same subject, so that the decisions of the California 
 courts under such statute may be applicable in the state of Nevada. 
 
EJECTMENT IN COLORADO. 749 
 
 CHAPTER XLII. 
 
 THE ACTION FOE THE EECOVEET OP SEAL PEOPEETT IN THE SEVEEAL 
 STATES — THE PEAOTICE IN COLOEADO, OEEGON AND CALIFOENIA. 
 
 In the prospective, and as yet unorganized state of Colorado, 
 the practice in actions for the recovery of real property, is quite 
 similar to that in Illinois ; although the two codes are not entirely 
 identical. The statute of Colorado provides that no person shall 
 recover in ejectment unless he has at the time of commencing the 
 action a valid subsisting interest in the premises claimed, and a 
 right to recover the same, or to recover the possession thereof, or 
 of some share, interest or portion thereof, to be established on the 
 trial. If the premises for which the action is brought, are actually 
 occupied by any person, such actual occupant must be named 
 defendant in the declaration ; if they are not so occupied, the 
 action must be brought against some person exercising acts of 
 ownership on the premises claimed, or claiming title thereto or 
 some interest therein, at the commencement of the suit. (E. S. 
 eh. 2Y, §§ 3, 4.) • • • 
 
 The action of ejectment in Colorado, is commenced by the filing 
 of a declaration in the office of the district court of the proper 
 county, whereupon a summons is issued directed to the sheriff' for 
 service as in other cases. And in all cases in ejectment where the 
 summons shall be served ten days before the first day of the term 
 of court to which the said summons is returnable, the defendant 
 or defendants are required to plead, and the cause will be set 
 down for trial as is provided in other cases. The sheriff" is required 
 to serve the summons by reading to the defendant, or, in case the 
 defendant cannot be found in the county, then by delivering a 
 copy of such summons to some person of the family of the defend- 
 ant of the age of ten years or upward, who shall be found residing 
 at the dwelling-house of said defendant. (R. S. ch. 27, § 5.) 
 
 The use of fictitious names of plaintiffs or defendants, and of the 
 names of any other than the real claimants and the real defend- 
 ants, and the statement of any lease or demise to the plaintiff", and 
 of an ejectment by an actual or nominal ejector, are abolished. 
 (E. S. ch. 27, § 6.) 
 
750 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 It is suflicient for the plaintiiF to aver in his declaration, that on 
 same day therein to be specified, and which must be after his title 
 accrued, he was possessed of the premises in question, describing 
 them with convenient certainty, so that from such description, 
 possession of the premises claimed may be delivered, and being so 
 possessed thereof, that the defendant afterward (on some day to be 
 stated) entered into such premises, and that he unlawfully with- 
 holds from the plaintiff the possession thereof, to his damage, any 
 nominal sum the plaintiff may think proper to state; and if tlie 
 plaintiff claims any undivided share or interest in any premises, 
 he must state the same particularly, in his declaration. The 
 plaintiff must also in every ease state in his declaration whether 
 he claims in fee, or whether he claims for his own life or the life 
 of another, or for a term of years, specifying such life or the dura- 
 tion of such term ; or if the plaintiff claims the right to occupy 
 and possess the premises, under the local laws of any mining dis- 
 trict or otherwise, the declaration must contain a brief statement 
 of such claim, and whether the same be by pre-emption or pur- 
 chase. In any case the declaration may contain several counts, 
 and several parties may be joined as plaintiffs, jointly in one 
 count, and separately in others. (R. S. ch. 27, §§ 7, 8, 9.) 
 
 A defendant in ejectment may, at any time before pleading, 
 apply to the court, or any judge thereof in vacation, to Compel the 
 attorney for the plaintiff to produce' to such court or ofHcer, his 
 authority for commencing the action in the name of any plaintiff 
 therein ; the application must be accompanied by an affidavit 
 of the defendant, that he has not. been served with proof, in any 
 way, of the authority of the attorney to use the name of the 
 plaintiff stated in the declaration. The order granted in the appli- 
 cation is in all respects similar to the one provided for in the like 
 cases in the state of New Yovk, and if the defendant is made liable 
 for the costs of the application, the same may be enforced by attach- 
 ment as in other cases of costs given by order of court. (R. S. ch. 
 27, §§ 10, 11, 12.) 
 
 The defendant may demur to the declaration, as in personal 
 actions, or he is required to plead the general issue only, which is, 
 that the defendant is not guilty of unlawfully withholding the 
 premises claimed by the plaintiff, as alleged in the declaration ; 
 and the filing of such plea or demurrer is deemed an appearance 
 by the code ; and upon such plea, the defendant may give the same 
 
EJECTMENT IN COLORADO, '761 
 
 matter in evidence, and the same proceedings must be had as upon 
 the plea of not guilty, in the ordinary action of ejectment at com- 
 mon law, with certain exceptions hereinafter speciiied ; and the 
 defendant may likewise give in evidence any matter which, if 
 pleaded' in the writ of ejectment, would har the action of the 
 plaintiflF. (R. S. eh. 27, § 13.) 
 
 The old consent rule at common law is abolished ; but it is not 
 necessary for the plaintiff in the action of ejectment to prove an 
 victual entry under title, nor the actual receipt of any of the profits 
 of the premises demanded; he is only required to show a right to 
 the possession of the premises at the time of the commencement 
 of the suit, as heir, devisee, purchaser or otherwise, and it is not 
 necessary on the trial, for the defendant to confess, nor for the 
 plaintiff to prove lease and ouster, or either of them ; except that 
 if the action be brought by one or more tenants in common, or 
 joint tenants against their co-tenants, the plaintiff is required to 
 give the usual additional evidence on the trial of the cause, that 
 the defendant actually ousted such plaintiff, or did some other act 
 amounting to a total denial of his right as such co-tenant. (E. S, 
 ch. 27, §§ 14, 15, 16, 17.) 
 
 If the action be brought against several defendants, and a joint 
 possession of all be proved, the plaintiff will be entitled to a verdict 
 against all, whether they shall have pleaded separately or jointly ; 
 and when the action is against several defendants, if it appear on 
 the trial that any of them occupy distinct parcels in severalty or 
 jointly, the plaintiff must elect at the trial against which he will 
 proceed, which election is required to be made before the testi- 
 mony in the cause shall be closed, and a verdict may thereupon 
 be rendered for the defendants not so proceeded against. (R. S. 
 ch. 27, §§ 18, 19.) 
 
 If it be shown on the trial that all the plaintiffs have a right to 
 recover the possession of the premises, the verdict in that respect 
 must be for the plaintiffs generally. If it appear that one or more 
 of the plaintiffs have a right to the possession of the premises, and 
 that one or more have not such right, the verdict must specify for 
 which plaintiff* the jury find, and as to which plaintiff they find 
 for the defendant. If the verdict be for any plaintiff, and there 
 be several defendants, the verdict must be rendered against such 
 of them as were in possession of the premises, or as claimed title 
 thereto at the commencement of the action. If the verdict be for 
 
752 LAW OF EJECTMENT AND ADVERSE ENJOYMENT, 
 
 all the premises claimed, as specified in the declaration, it must in 
 that respect be for such premises generally. If the verdict be for 
 a part of the premises described in such declaration, it must par- 
 ticularly specify such fact, as the same shall have been proved, with 
 the same certainty as is required in the description of the premises 
 claimed in the declaration. If the verdict be for an undivided 
 share or interest in the premises claimed, it must specify such 
 share or interest, and if for an undivided share in a part of the 
 premises claimed, it must specify such share, and must describe 
 such part of the premises as hereinbefore required. The verdict 
 must also specify the estate which shall have been established on 
 the trial by the plaintiii' in whose favor it shall be rendered, 
 whether such estate be in fee, for his own life, or for the life of 
 another, stating such lives, or, whether it be for a term of years, 
 specifying the duration of such term, or whether the plaintiff has 
 established only his right to the possession and occupancy of the 
 premises in controversy. And, if the right or title of a plaintiff 
 ia ejectment expire after the commencement of the suit, but 
 before trial, the verdict must be returned according to the fact, 
 and judgment must be entered, that he recover his damages by 
 reason of the withholding of the premises by the defendant, to be 
 assessed, and that, as to the premises claimed, the defendant go 
 thereof without day. (R. S. ch. 27, §§ 20, 21.) 
 
 The statute provides that the action of ejectment shall not be 
 abated by the death of any plaintiff, or one of several defendants, 
 after issue and before verdict and judgment, but the same pro- 
 ceedings may be had, as in other actions, to substitute the names 
 of those who may succeed to the title of the plaintiff so dying, in 
 which case the issue is tried as between the original parties ; and, 
 in case of the death of a defendant, the cause may proceed against 
 the other defendants. (E. S. ch. 27, § 22.) 
 
 In cases where no other provision is made, the judgment in the 
 action, if the plaintiff prevail, will be that the plaintiff recover 
 the possession of the premises, according to the verdict of the 
 jury, if there was such verdict ; or, if the judgment be by default, 
 according to the description thereof in the declaration, with costs 
 to be taxed. (R. S. ch. 27, § 23.) 
 
 The plaintiff recovering judgment is entitled to a writ of 
 possession, which the statute requires to be substantially in the 
 following form : 
 
EJECTMENT IN COLORADO. 763 
 
 The people, etc., to the sheriff, etc. : Whereas, A B has lately, 
 in the district court held in and for the county of , by the 
 
 judgment of the said court, recovered against C D one messuage, 
 etc. (describing the premises recovered with the like certainty as 
 described in the verdict and judgment), which said premises have 
 been and are still unjustly withheld from the said A B by the said 
 C D, whereof he is convicted as appears to us of record, and his 
 said judgment against the said D, according to the force, form 
 and effect of his said recovery ; wherefore, we command you, that, 
 without delay, that you deliver to the said A B possession of the 
 premises so recovered, with the appurtenances, and that you cer- 
 tify to, etc., at, etc., on, etc., in what manner you shall have exe- 
 cuted this writ. (If there be costs to be collected, the proper 
 clause may be here inserted, or a separate execution may be issued 
 therefor.) Witness, etc. (R. S. ch. 27, § 24.) 
 
 Every judgment in the action of ejectment, rendered upon a 
 verdict, is made conclusive, as to the title established in the action, 
 tipon the party against whom the same is rendered, and against 
 all persons claiming from, through or under such party, by title 
 accruing after the commencement of such action, except that the 
 court in which the judginent shall be rendered, at any time within 
 one year therea;fter, upon the application of the party against 
 whom the same was rendered,' his heirs or assigns, and upon the 
 payment of all costs and damages recovered thereby, must vacate 
 such judgment, and grant anew trial in the cause ; and the court, 
 upon subsequent application made within one year after the ren- 
 dering of the second judgment in the cause, if satisfied that justice 
 will thereby be promoted, and the rights of the parties more satis- 
 factorily ascertained and established, may vacate the judgment 
 and grant another new trial ; but no more than two new trials 
 can be had under these provisions. (R. S. ch. 27, §§ 25, 26.) 
 
 Every judgment in ejectment rendered by default will, from and 
 after two years from the time of entering the same, be conclusive 
 upon the defendant and upon all persons claiming from or through 
 him by title accruing after the commencement of the action ; but, 
 within two years after the entering of such judgment, on the appli- 
 cation of the defendant, his heirs or assigns, and upon the payment 
 of all costs and damages recovered thereby, the court may vacate 
 Buch judgment and grant a new trialj if such court shall be satis- 
 95 
 
754 LAW OF EJECTMENT AND ABVEpSE ENJOYMENT. 
 
 fied that justice will be promoted and the rights of the parties 
 more satisfactorily ascertained and established. And the statute 
 contains the same provision in favor of persons laboring under dis- 
 ability as is contained in the Illinois statute in this regard. (R. S. 
 eh. 27, §§ 27, 28, 29.) 
 
 If the plaintiff shall have taken possession of the premises by 
 virtue of any recovery in ejectment, such possession will not in 
 any way be affected by the vacating of any judgment as before 
 provided ; but if the defendant recover in any new trial authorized, 
 he will be entitled to a writ of possession, in the same manner as 
 if he were plaintiff. (E. S. ch. 27, § 30.) 
 
 Upon any new trial granted in the action of ejectment, the 
 defendant may show any matters in bar of a recovery, which he 
 might show to entitle him to the possession of the premises, if 
 he were plaintiff in the action, and the plaintiff recovering judg- 
 ment in ejectment in any other cases in which the action may be 
 maintained, will also be entitled to recover damages against a 
 defendant for the rents and profits of the premises recovered. 
 (R. S. ch. 27, §§ 31, 32.) 
 
 Instead of the action of trespass for mesne profits, the plaintiff 
 seeking to recover such damages must, within one year after the 
 entering of the judgment, make and file a suggestion of such claim, 
 which will be entered with the proceedings thereon upon the 
 record of such judgment, or be attached as a continuance of the 
 same. Such suggestion is required to be substantially in the same 
 form as is now in use for a declaration in an action of assumpsit 
 for use and occupation as near as may be ; and it must be served 
 on the defendant in the same manner as is prescribed respecting 
 the service of a summons in ejectment; and the same rules of 
 pleading thereto are to be observed as upon a declaration in per- 
 sonal actions. The defendant may plead the general issue of non- 
 assumpsit, and under such plea may give notice of, or may plead 
 specially, any matter in bar of such claim, except such as were or 
 might have been controverted in the action of ejectment, but he 
 may plead or give notice of a recovery by sucli defendant,, or any 
 other person of the same premises, or any part thereof, subsequent 
 to the verdict in such action of ejectment, in bar or mitigation of 
 the damages claimed by the plaintiff. (R. S. ch. 27, §§ 33, 34, 35.) 
 
 If any issue of fact be joined on such suggestion, it must be 
 tried as in other cases ; aiid if such issue be found for the plaintiff, 
 
EJECTMENT IN COLORADO. , 7S5 
 
 the same jury must assess his damages to the amount of the mesne 
 profits received by the defendant since he entered into possession 
 of the premises. On the trial of such issue, the plaintiff is 
 required to establish, and the defendant may controvert, the time 
 ■when such defendant entered into the possession of the premises. 
 The time during which he enjoyed the mesne profits of the premises 
 ■will not be evidence of such time. On such trial, the defendant 
 •will have the same right to set off any improvements made on the 
 premises to the amount of the plaintiff's claim, as is allowed by 
 law, and in estimating the plaintiff's damages, .the value of the 
 use by the defendant of any improvements made by him will not 
 be allowed to the plaintiff. (E. S. cb. 27, §§ 36, 37.) 
 
 If no issue of fact be joined on such suggestion, or if judgment 
 thereon be rendered against the defendant by default, on demurrer, 
 or otherwise, a ■writ of inquiry to assess the value of such mesne 
 profits will be issued, of the execution of which the same notice 
 must be given to the defendant or his attorney as in other cases ; 
 and, upon the execution of such writ, the plaintiff will be required 
 to establish the same matters as is required in the case of an issue 
 being joined ; and the defendant may in like manner controvert 
 the same, and make any set-off to which he may be entitled, and 
 the jury must assess the damages in the same manner; the same 
 proceedings must be had on such writ, and it must be returned as 
 in other cases, with the inquisition taken thereon. Upon such 
 inquisition, or upon the verdict of the jury, in the case of the issue 
 being joined, the court will render judgment as in actions of 
 assumpsit for use and occupation, which will have the like effect 
 in all respects. (R. S. ch. 27, §§ 38, 39.) 
 
 If the plaintiff in ejectment shall have died after issue joined on 
 the judgment therein, his personal representations may enter a 
 suggestion of such death, of the granting letters testamentary or 
 of administration to them, and may suggest their claim to the 
 mesne profits of the premises recovered, in the same manner and 
 with the like effect as the deceased ; and the same proceedings in 
 all respects will be had thei'eon. (E. S. ch. 27, § 40.) 
 
 In all cases in which any person has entered upon and occupied 
 any lands, tenements or hereditaments within the territory of 
 ColoradOj by virtue of any lea,se or permit of the United States, 
 or the territory of Colorado, such person, his, her or their heirs or 
 assigns, may have and maintain an action of ejectment against 
 
756 ZAW OF EJECTMENT AND ABVESSE ENJOYMENT. 
 
 any person who has entered or inay enter upon such lands, tene- 
 ments or hereditaments without the consent of such lessee, his, 
 her or their heirs or assigns, and proof of the right of possession 
 ■will be sufficient to authorize a recovery. (E. S. ch. 27, § 41.) 
 
 It is not necessary, in trials of ejectment, when it shall appear 
 by the return that the defendant or defendants were in possession 
 of the premises at the time when the suit was brought, for the 
 plaintiff to prove that said defendant or defendants were in pos- 
 session at the time of bringing such suit, unless the defendant or 
 defendants shall by special plea deny that he, she or they were in 
 possession ; and the plea of not guilty will not put in issue the 
 possession of the premises claimed. (R. S. ch. 27, § 42.) 
 
 Every person who may be evicted from any land for which he 
 can show a plain, clear and connected title in law or equity, 
 deduced from the record of some public office, without actual 
 notice of an adverse title, in like manner derived from record, 
 will be exempt and free from all and every species of action, writ 
 or prosecution for or on account of any rents or j)rofits or damages 
 which shall have been done, accrued or incurred at any time prior 
 to receipt of actual notice of the adverse claim by which the evic- 
 tion may be effected ; provided, such person obtained peaceable 
 possession of the land. (R. S. ch. 27, § 43.) 
 
 The statute of Colorado concerning actions for the recovery of 
 real property has not yet received any construction by the courts 
 of the territory ; but it is so similar, in many respects, to the 
 statutes of New York and Illinois upon the same subject, that the 
 decisions of the courts of those states may be safely consulted 
 for the purpose of obtaining a judicial construction of such statute. 
 
 In the state of Oregon the distinction between forms of action 
 at law is abolished, and they have there one form of action at law 
 for the enforcement of private rights or the redress of private 
 wrongs ; and in such action the party complaining is known as 
 the plaintiff, and the adverse party as the defendant. (Gen. Laws, 
 1864, ch. 1, §§ 1, 2.) 
 
 The action for the recovery of real property, or an estate or an 
 interest therein, must be commenced and tried in the county in 
 which the subject of the action, or some part thereof, is situated ; 
 subject, however, to the right of the court or a judge thereof to 
 change the place of trial of such action for good cause shown. 
 (Gen. Laws, ch. 1, §§ 41, 44.) 
 
EJECTMENT IN OREGON. 767 
 
 ' The action for the recovery of real property, like other actions 
 at law, is commenced by filing a complaint with the clerk of the 
 court, and causing a summons to be served on the defendant. 
 The summons may be in the form prescribed for other actions not 
 for the recovery of money or damages only, and may be served as 
 in other cases. (Gen. Laws, ch. 1, §§ 50-58.) 
 
 The action must be commenced against the person in the actual 
 possession of the property at the time, or, if the property be not in 
 the actual possession of any one, then against the person acting as 
 the owner thereof. A defendant who is in actual possession may, 
 for answer, plead that he is in possession only as tenant of another, 
 naming him and his place of residence, and thereupon the land- 
 lord, if he apply therefor, will be made defendant in place of the 
 tenant, and the action will proceed in all respects as if originally 
 commenced against him. If the landlord do not apply to be made 
 defendant within the day the tenant is allowed to answer, there- 
 after he will not be allowed to ; but he will be made defendant if 
 the plaintiff require it. If the landlord be made defendant, on 
 motion of the plaintiff, he will be required to appear and answer 
 within ten days from notice of the pendency of the action and the 
 order making him defendant, or such further notice as the court or 
 judge thereof may prescribe. (Gen. Laws, ch. 4, §§ 313, 314.). 
 
 The plaintiff in his complaint must set forth the nature of his 
 estate in the property, whether it be in fee, for life, or for a term 
 of years, and for whose life, or the duration of such term, and that 
 he is entitled to the possession thereof, and that the defendant 
 wrongfully withholds the same from him to his damage, such sum 
 as may be therein claimed. The property must be described in the 
 complaint with such certainty as to enable the possession thereof 
 to be delivered, if a recovery be had. (Gen. Laws, ch. 4, § 315.) 
 
 The defendant will not be allowed to give in evidence any estate 
 in himself or another in the property, or any license or right to the 
 possession thereof, unless the same be pleaded in his answer. If 
 so pleaded the nature and duration of such estate, or license or right 
 to the possession, must be set forth with the certainty and particu- 
 larity required in a complaint. If the defendant does not defend 
 for the whole of the property, he must specify for what particular 
 part he does defend. In an action against a tenant the judgment 
 will be conclusive against a landlord, who has been made defend- 
 ant in place of the tenant, to the same extent as if the action 
 
758 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 had been originally commenced against him. (Gen. Laws, ch. 4, 
 § 316.) 
 
 If the verdict of the jury be for the plaintiiF, it must be that he 
 is entitled to the possession of the property described in the com- 
 plaint, or some part thereof, or some undivided share or interest in 
 either, and the nature and duration of his estate in such property, 
 part thereof, or undivided share or interest in either, as the case 
 may be. If the verdict be for the defendant, it must be that the 
 plaintiff is not entitled to the possession of the property described 
 in the complaint, or to such part thereof as the defendant defends 
 for, and the estate in such property or part thereof, or license or 
 right to the possession of either, established on the trial by the 
 defendant, if any ; in effect as the same is required to be pleaded. 
 (Gen. Laws, ch. 4, § 317.) 
 
 The plaintiff will only be entitled to recover damages for with- 
 holding the property for the term of six years next preceding the 
 commencement of the action, and for any period that may elapse 
 from such commencement to the time of giving a verdict therein, 
 exclusive of the use of permanent improvements made by the de- 
 fendant. When permanent improvements have been made upon 
 the property by the defendant, or those imder whom he claims, 
 holding under color of title adversely to the claim of the plaintiff 
 in good faith, the value thereof at the time of trial must be allowed 
 as a set-off against the damages. And if the right of the plaintiff 
 to the possession of the property expire after the commencement 
 of the action, and before the trial, the verdict must be given accord- 
 ing to the fact, and judgment will be given only for the damages. 
 (Gen. Laws, ch. 4, §§318, 319.) 
 
 The court or judge thereof, on motion, and after notice to the 
 adverse party, may, for cause shown, grant an order allowing the 
 party applying therefor to enter upon the premises in controversy, 
 and make survey and admeasurement thereof for the purposes of 
 the action, the same as in some of the other western states. The 
 order must describe the property, and a copy thereof must be served 
 upon the defendant, and thereupon the party may enter upon the 
 property and make such survey and admeasurement, but if any 
 unnecessary injury be done to the premises he will be liable there- 
 for. (Gen. Laws, ch. 4, §§ 320, 321.) 
 
 An action for the recovery of the possession of real property 
 against a person in possession cannot be prejudiced by any aliena- 
 
EJECTMENT IN OREGON. Y59 
 
 tion made by such person either before or after the commencement 
 of the action ; but if sucli alienation be made after the commence- 
 ment of the action, and the defendant, do not satisfy the judgment 
 recovered for damages for withholding the possession, such dam- 
 ages may be recovered by action against the purchaser. (Gen. 
 Laws, ch. 4, § 322.) 
 
 A mortgage of real property will not be deemed a conveyance, 
 so as to enable the owner of the mortgage to recover possession of 
 the real property without a foreclosure and sale according to law. 
 And in an action for the recovery of dower before admeasurement, 
 or by a tenant in common of real property against a co-tenant, the 
 plaintiff is required to show, in addition to his right of possession, 
 that the defendant either denied the plaintiff's rights, or did some 
 act amounting to such denial, the same as in Colorado and in other 
 states. (Gen. Laws, ch. 4, §§ 323, 324.) 
 
 When, in case of a lease of real property and the failure of the 
 tenant to pay the rent, the landlord has a subsisting right to re- 
 enter for such failure, he may bring an action to recover the pos- 
 session of such property, and such action is eqiiivalent to a demand 
 of the rent and a re-entry upon the property. But, if at any time 
 before judgment in such action, the lessee or his successor in inter- 
 est, as to the whole or a part of the property, pay to the plaintiff, 
 or bring into court the amount of rent then- in arrear with interest, 
 and the costs of the action, and perform the other covenants or 
 agreements on the part of the lessee, he will be entitled to continue 
 in the possession according to the terms of the lease. (Gen. Laws, 
 ch. 4, § 325.) 
 
 In an action to recover the possession of real property, the 
 judgment therein will be conclusive as to the estate in such prop- 
 erty and the right to the possession thereof, so far as the same 
 is thereby determined upon the party against whom the same is 
 given, and against all persons claiming from, through, or under 
 such party, after the commencement of such action; except that 
 when service of the summons is made by publication, and judg- 
 ment is given for want of answer, at any time within two years 
 from the entry thereof, the defendant or his successor in interest 
 as to the whole or any part of the property will, upon application 
 to the court or a judge. thereof, be entitled to an order vacating 
 the judgment and granting him a* new trial, upon the payment 
 of the costs of the action; But if, in such case, the plaintiff has 
 
760 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 taken possession of the property before the judgment is set aside 
 and a new trial granted, such possession will not be thereby 
 affected in any way, and if judgment be given for the defendant 
 in the new trial, he will be entitled to restitution by execution 
 in the same manner as if he were plaintiff. (Gen. Laws, ch. 4, 
 §§ 326, 327.) 
 
 In an action to recover the possession of real property by a ten- 
 ant in dower, or her successor in interest, if such estate in dower 
 has not been admeasured before the commencement of the action, 
 the plaintiff* will not have execution to deliver the possession 
 thereof, until the same is admeasured in the manner specifically 
 provided by statute. (Gen. Laws, ch. 4, § 328.) 
 
 In an action at law for the recovery of the possession of real 
 property, if either partj^ claim the property as a donee of the 
 United States, under the act of congress, approved September 27, 
 1850, commonly called the donation law, or the acts amendatory 
 thereof, such party from the date of his settlement thereon, as pro- 
 vided, in said acts, will be deemed to have a legal estate in fee in 
 such property, to continue upon condition that he perform the 
 conditions required by such acts, which estate is unconditional 
 and indefeasible after the performance of such conditions. In 
 such action, if both plaintiff and defendant claim title to the same 
 real property, by virtue- of settlement under such acts, such settle- 
 ment, and the performance of the subsequent conditions, will bo 
 conclusively presumed, in favor of the party having or claiming 
 tinder the elder patent certificate, or patent, as the case may be, 
 unless it appear upon the face of such certificate or patent, that 
 the same is absolutely void. (Gen. Laws, ch. 4, § 329.) 
 
 There has been considerable litigation growing out of the pro- 
 visions of the donation acts of congress referred to in the last sec- 
 tion of the Oregon statute above referred to. It has been held 
 that lands upon which there has been the requisite settlement and 
 cultivation, under the provisional government, though held as 
 town sites when the act of 27th of September, 1850, was passed, 
 maybe held as donations under the act. {Martin y. T' Vault 
 1 Oregon R. 77.) But it has been decided that lieirs of settlers in 
 Oregon who died prior to September 27th, 1850, cannot inherit or 
 hold land by virtue of residence and cultivation of their ancestors. 
 {Ford v. Kennedy, 1 Oregon R. 166.) 
 The issuing to claimants of certificates of donation claims 
 
EJECTMENT IN CALIFORNIA. 761 
 
 belongs to the registrar and receiver of the land oflace ; and in 
 Oregon they are the successors of the surveyor-general in this 
 business. {Keith v. Cheeny, 1 Oregon *R. 285.) And, under the 
 act of congress of September 27th, 1850, "to create the otSce 
 of surveyor-general of the public lands of Oregon," the act com- 
 monly known as the " The Oregon Donation Act," the right of 
 the claimant to a patent became perfected when the certificate 
 of the surveyor-general and accompanying proofs were received 
 by the commissioner of the general land oifice, and he found no 
 valid objection thereto. So decided by the supreme court of the 
 United States in a case in which the provisions of the " donation 
 act " are given and construed at considerable length. (Stark v. 
 Starrs, 6 "Wallace's R. 402. And i)ide Zee v. Summers, 2 Oregon 
 E. 260.) 
 
 It is held that a settler, with an Indian woman for a wife, is a 
 married man within the meaning of the fourth section of the 
 donation act. {Vandolf v. Otis, 1 Oregon E. 153.) And it has 
 been decided that what is a residence under the act must be deter- 
 mined from all the facts and circumstances in each particular case. 
 {Lee V. Simonds, 1 Oregon E. 158.) 
 
 The claimant of a donation land claim, under the act of congress 
 of 27th September, 1850, must set the land apart for his own use, 
 and designate it by boundaries with reasonable certainty ; and any 
 substantial change in the location will be an abandonment of his 
 claim and the taking of a new one. {Carter v. Chapman, 2 Ore- 
 gon R. 93.) But one in possession of land, claiming under the 
 donation act, cannot be dispossessed, by action at law, before the 
 completion of his four years' residence, when the contest between 
 the parties has been determined in favor of the occupant by the 
 surveyor-general. {Pvn v. Morris, 1 Oregon E. 270.) 
 
 In the state of California the statute relating to actions concern- 
 ing real estate is similar to that of the state of Nevada and some 
 others of the western states. An action may be brought by any 
 person in possession, by himself or his tenant, of real property, 
 against any person who claims an estate or interest adverse to 
 him, for the purpose of determining such adverse claim, estate or 
 interest. If the defendant in such action disclaim, in his answer, 
 any interest or estate in the property, or suffer judgment to be 
 taken against him without answer, the plaintiff will not recover 
 costs. 
 
 96 
 
762 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 In the action for the recovery of real property, where the plaintiff 
 shows a right to recover at the time the action was commenced, 
 but it a'ppears that liis ri^it has terminated during the pendency 
 of the action, the verdict and judgment must be according to the 
 fact, and tlie plaintiff may recover damages for withholding the 
 property. 
 
 When damages are claimed for withholding the property recov- 
 ered, upon which permanent improvements have been made by a 
 defendant, or those under whom he claims, holding under color 
 of title adversely to the claims of the plaintiff, in good faith, the 
 value of such improvements will be allowed as a set-off against 
 such damages. 
 
 The court in which an action is pending for the recovery of real 
 property, or a judge thereof, or a county judge, may, on motion, 
 upon notice by either party, for good cause shown, grant an order 
 allowing to such party the right to enter upon the property and 
 make survey and measurement thereof for the purposes of the 
 action. The order must describe the property, and a copy thereof 
 must be served on the owner or occupant ; and thereupon such 
 party may enter upon the property, with necessary surveyors and 
 assistants, and may make such survey and measurements ; but, if 
 any unnecessary injury be done to the property, he will be liable 
 therefor. 
 
 A mortgage of real property is not to be deemed a convey- 
 ance, whatever its terms, so as to enable the owner of the mortgage 
 to recover possession of the. property, without a foreclosure and 
 sale. 
 
 The court may, by injunction, on good cause shown, restrain 
 the party in possession from doing any act to the injury of real 
 property during the foreclosure of a mortgage thereon,, or after a 
 sale on execution before conveyance. When real property shall 
 have been sold on execution, the purchaser thereof, or any person 
 who may have succeeded to his interest, may, after his estate 
 becomes absolute, recover damages for injury to the property 
 by the tenant in possession, after sale and before possession is 
 delivered under the conveyance. An action for the recovery of 
 real property against a person in possession cannot be prejudiced 
 by any alienation made by such person, either before or after the 
 commencement of the action. (2 Gen. Laws, 1850-1864, tit. 
 8, oh. 3.) 
 
EJECTMENT IN CALIFORNIA. 763 
 
 There Has been a world of litigation under the statute of Cali- 
 fornia respecting actions for the recovery of lands, and many cases 
 have been reported ; but the doctrine of the courts may be found 
 by a reference to a comparitively few of the cases decided. 
 
 It is usual to speak of the action to recover the possession of real 
 property in California, as an action of ejectment, and it is possi- 
 ble that with the technical designation it is sometimes thought 
 that some of the technical allegations peculiar to the old form of 
 the action are still necessary. But such is not the case. There is 
 but one form of civil actions in the state, and all the forms of 
 pleadings and the rules by which their suflBciency is to be deter- 
 mined are prescribed by the practice act. {Vide Practice Act, 
 § 37.) The complaint must contain " a statement of the facts con- 
 stituting the cause of action in ordinary and concise language," 
 and it may be verified by the"oath of the party, in which case the 
 answer must also be verified. The system in California requires 
 the facts to be allowed as they exist, and repudiates all fictions, 
 and only such facts need be alleged as are required to be proved, 
 except to negative a possible performance of the obligation which 
 is the basis of the action, or negative an inference from an act 
 which is in itself indififerent. The facts which must be proved in 
 order to recover in ejectment are these only : that the plaintiff" is 
 seised of the premises, or of some estate therein in fee, or for life, 
 or for years, and that the defendant was in their possession at the 
 commencement of the action. The seisin is the fact to be alleged 
 in the plaintifl''s complaint. It is a pleadable and issuable fact, to 
 be established by conveyance from a paramount source of title, or 
 by evidence of prior possession. It is the ultimate fact upon 
 which the claim to reco\^r depends, and it is facts of this character 
 which must be alleged, and not the prior or probative facts which 
 go to establish them. It is the ultimate facts — which could not 
 be struck out-of a pleading without leaving it insufficient — and 
 not the evidence of those facts, which must be stated. It is suffi- 
 cient, therefore, in a complaint in ejectment for the plaintiff' to 
 aver, in resjpectto his title, that he is seised of the premises, or of 
 some estate therein in fee, or for life, or for years, according to the 
 fact. The right to the possession follows as a conclusion of law 
 from the seisin, and need not be alleged. There is no necessity, 
 in the complaint, of negativing the possible rightful character of tjie 
 defendant's possession ; such possession is a pleadable and issuable 
 
764 ZAW OF EJECTMENT AND ADVEESE ENJOYMENT, 
 
 fact ; but if it rests upon any existing right, the defenSant must 
 show it affirmatively in his defense. Upon this reasoning, and 
 upon these principles, a complaint in ejectment, which alleged 
 "that the said plaintiffs are the ownei-s in fee as tenants in com- 
 mon, and have the lawful right and are entitled to the possession" 
 of the described premises, and " that the said defendants wrong- 
 fully entered upon, and are now in the wrongful and unlawful pos- 
 session of, said premises, and wrongfully and unlawfully withhold 
 the possession thereof from said plaintiffs ;" followed by the prayer : 
 " Whereupon the plaintiffs demand judgment that they recover 
 and be put in possession of said premises, and that the defendants 
 pay damages for the unlawful withholding of said premises, and 
 for the rents and profits thereof in the sum of $3,000," was held 
 sufficient on demurrer. {Payne v. Treadwell, IG Cal. R. 220. And 
 vlds Salmon v. Simonds, 2i ib. 260.)' And it has been held that 
 a complaint in ejectment, with general averments in the usual 
 form, is sufficient, without a specific averment of the facts. To set 
 out the facts connected with the title, and the wrongful acts of the 
 defendant, it was said, would produce confusion without benefit. 
 (Garrison v. Sam,pson, 15 Cal. K. 95. And vide Coryell \. Cain, 
 16 ib. 571. Depuy v. Williajns, 26 ib. 313.) But, if the plaintiff 
 in ejectment attempt to set forth in his complaint a specific 
 deraignment of his title, he must aver every fact that he could bo 
 required to prove in order to recover, and where one of the links 
 in his chain of title, as set out in the complaint, is a will, the 
 complaint must aver that the will has been admitted to probate. 
 {Castn'O V. Richardson, 18 Cal. R. 478.) 
 
 An allegation in a complaint in ejectment that the plaintiff, on 
 a day named, " was possessed of" certain '9ands therein described, 
 " which said premises the said plaintiff claims in fee simple abso- 
 lute," is an allegation of title in the plaintiff to the premises in fee 
 simple absolute, and it is held that it is not necessary in a com- 
 plaint in ejectment to aver an ouster by the defendant. An aver- 
 ment of a wrongful withholding of the possession by the defendants 
 is equivalent to an averment of an ouster. It is the right to the 
 possession as between the parties that is tried in ejectment, and 
 this right to the possession is the title. {Marshall v. Shafter, 
 82 Cal. R. 176.) 
 
 The defendant in an action of ejectment may put in an answer 
 denying generally each and every allegation contained in the plaint- 
 
EJEOTilENT IN CALIFORNIA. 765 
 
 iff's complaint, and under such general denial in his answer he 
 may give in evidence title in himself. An allegation in an answer 
 of the defendant in ejectment of title in himself, does not consti- 
 tute new matter, and is only equivalent to a general denial of title 
 in the plaintiff. If the plaintiff in his complaint avers title in him- 
 self, and the defendant interposes a general denial, the respective 
 titles of the plaintiff and the defendant are put in issue. {Mar- 
 shall V. S/uifter, 32 Oal. E. 176.) 
 
 A defendant in ejectment is bound to bring forward all matter 
 of a strictly defensive character, or be precluded from again liti- 
 gating the same ; but he is not bound to set up or litigate new 
 matter constituting 'a cause of action in his favor. {Ayres v. 
 Brushy, 32 Cal. E. 620.) 
 
 The defendant, in an action of ejectment to recover the posses- 
 sion of land, cannot set up in his defense a former suit pending 
 between the same parties, brought for the recovery of the same 
 land, unless it is averred in the answer that the second action is 
 for the same injury as the first, and that the same matters are in 
 issue and may be tried in the first action. A party may have two 
 suits against the same defendant for the recovery of the same land 
 pending at the same time, if the second is brought on a title 
 acquired after the commencement of the first. ( Vance v. OUnger, 
 27 Cal. E. 358.) 
 
 A mere equitable title to land, if of such a character as in equity 
 entitles the holder to possession, is a sufiicient defense, under the 
 California system of practice, to an action for the possession 
 brought by the holder of the legal title. Whenever a right 
 claimed under the rules of the common law is denied, governed 
 or controlled by the principles administered by courts of equity, 
 the latter will prevail over the former. The plaintiff, to recover 
 in ejectment, must show both a legal and equitable title or right 
 of possession. From proof of the legal title a right of possession 
 will be presumed, but the presumption may be rebutted by proof 
 of an equitable title in another of a character to carry the right 
 of possession. The practice in California is analogous to that of 
 Pennsylvania in respect to the action for the recovery of real 
 property, where the courts administer equity in common-law 
 actions, and in actions of ejectment enforce the rights of the par- 
 ties in accordance with the rules and principles of equity. ( Willis 
 V. Wazencraft, 22 Cal. E. 607.) But an equitable title cannot avail 
 
766 LAW OF EJECTMENT AlTD AOVEliSB ENJOYMENT. 
 
 a defendant in an action of ejectment unless it be pleaded. {Cadiz 
 V. Majors, 33 Cal. E. 288.) 
 
 A defendant in ejectment, wlio desires to set off the value of his 
 improvements against the mesne profits, must assert his right by- 
 proper averments in his answer, or he is precluded from doing so 
 at the trial. {Moss v. Sheaf, 25 Cal. E. 38. Carpentier v. Gardi- 
 ner, 29 ib. 160.) The right of a defendant in ejectment to set off 
 the value of improvements made by him against the claim of the 
 plaintiff for damages depends upon whether they were made by him 
 or his grantors holding under color of title adverse to the plaintiff, 
 in good faith, and upon whether they are permanent or not. And 
 an answer in ejectment which seeks to set off the value of improve- 
 ments against damages, should aver that they were made while hold- 
 ing under color of title adverse to the plaintiff, in good faith, and 
 that they are permanent. {Carpenter v. Small, 35 Cal. E. 346. 
 And vide Bay v. Po;pe, 18 ib. 694.) 
 
 A defendant in an action of ejectment may show in defense a 
 title to the demanded premises acquired by him after the com- 
 mencement of the action. And, when the plaintiff's complaint 
 contains an. averment that the title to the demanded premises is in 
 the plaintiff, and the defendant's answer denies the averment, the 
 defendant may show on the trial that the plaintiff has divested 
 himself of the title before the commencement of the action, by 
 executing a deed to a third party, although the defendant does 
 not connect himself with the title of such third party. {Tustin v. 
 Faught, 23 Cal. E. 237. Bxjson v. Bradshaw, Ib. 528. Martie 
 V. Thorp, 29 ib. 444.) But the conveyance of the demanded 
 premises by the plaintiff in ejectment, pending the suit, to a per- 
 son not a party to the action, does not necessarily defeat the 
 action. {Barstow v. Newman, 34 Cal. E. 90.) The sale and 
 transfer by the plaintiff in ejectment of the demanded premises 
 pending the action is a transfer of the cause of action within the 
 meaning of the sixteenth section of the practice act ; and the 
 action may be continued in the name of the original plaintiff. 
 {Moss V. Shear, 30 Cal. E. 468.) New matter must be specially 
 pleaded ; and, in ejectment, a transfer of title by the plaintiff, or 
 a title acquired by the defendant, pending the action, must be 
 pleaded by supplemental answer, or it cannot be given in evicfence. 
 {Moss V. Shear, sv^pra) 
 
EJECTMENT IN CALIFORNIA. 76T 
 
 In an action of ejectment against several defendants, the plaintiff 
 may at any time before trial dismiss the action as to some of the 
 defendants, and proceed against the others alone. (Reed v. Caldcr- 
 wood, 22 Cal. E. 463.) 
 
 Where, in actions of ejectment, the parties claini under adverse 
 or different titles, and the court trying the cause without a jury 
 finds as a fact that the title is in one of the parties as claimed, the 
 supreme court held that, while it is not necessary, in addition, to 
 specify in the findings the facts constituting the claim of title set 
 1113 by the opposite party, yet, as a matter of convenience in prac- 
 tice, and to facilitate tlie decision thereon on appeal, the adoption 
 of such a practice is recommended. {Morrill v. Chapman, 35 Cal. 
 E. 85. Tide Henry v. Evarts, 30 ib. 426. Sears v. Dixon, 33 ib. 326.) 
 
 In ejectment the verdict maybe joint against several defendants 
 without specifying their respective lots in a whole tract, when they 
 file a joint answer which contains no averment as to the particular 
 portion of land occupied by each, no proof being offered on the 
 point, no damages being claimed, and defendants being in posses- 
 sion. {McGarvey v. Little, 15 Cal. E. 27.) 
 
 The recovery of a judgment in an action of ejectment is evidence 
 that at the commencement of the action the plaintiff was entitled 
 to the possession as against the defendant ; but, in order to con- 
 stitute it evidence against a third person not claiming under the 
 defendant, it must be sliown that the third person bore such a rela- 
 tion to the defendant's title that it was his duty to have defended 
 the action upon the requisite notice thereof being given, and that 
 he had a proper opportunitj' to make a defense founded upon such 
 title. {Calderwood v. Brooks, 28 Cal. E. 151.) And a judgment 
 for the plaintiff in ejectment is not conclusive except as against 
 defenses actually made, or ^egal defenses that might have been 
 made on the trial, and does not preclude a defendant from assert- 
 ing a title subsequently acquired. {Mann v. Rogers, 35 Cal. E. 
 316.) But, if the respective titles of the parties, or their right to 
 the possession of the demanded premises, are put in issue and tried 
 in ejectment, and the plaintiff recovers judgment for possession, 
 the judgment is an estoppel, and the defendant, to avoid the estop- 
 pel in a subsequent action to recover the same premises, must show 
 some other right of possession than he had when the judgment was 
 rendered. The fact that a judgment in ejectment is not that the 
 plaintiff recover the title, but only that he recover possession, does 
 
768 LAW OF EJECTMENT AND ADVEBSE ENJOYMENT. 
 
 not prevent the judgment from being an estoppel as to whatever 
 riglits the parties respecti velj' possessed. {Marshall v. Shafter, 
 32 Cal. K. 176. And vide Gaperton v. Schmidt, 26 ib. 479.) 
 
 The supreme court of the United States recently held, that, 
 where the plaintiffs in ejectment showed a legal title to land in 
 California under a patent. from the United States and a survey- 
 under their authority, it was proper in the court below to refuse 
 to admit testimony offered by the defendants to show that the 
 survey was incorrect, the defendants claiming under a merely 
 equitable title. And the court also decided, as a point of practice 
 in California, that, where the defendants pleaded severally the 
 general issue, it was proper for the court below to instruct the 
 jury to bring in a general verdict against all those who had not 
 shown that they were in possession of separate parcels ; and, fur- 
 ther, that the mode of proceeding by petition, as is the practice 
 in California, does not alter the law of ejectment under the old 
 system of pleading. Grier, J., delivering the opinion of the court, 
 said : " Although the circuit court may have adopted the mode of 
 instituting the action of ejectment by petition and summons instead 
 of the old fiction of lease, entry and ouster, it is still governed by 
 the principles of pleading and practice which have been established 
 by courts of common law. The hybrid naixture of civil and com- 
 mon-law pleadings and practice introduced by state codes cannot 
 be transplanted into the courts of the United States. 
 
 " In the action of ejectment, a plaintiff will not be allowed to 
 join in one suit several and distinct parcels, tenements or tracts of 
 land in possession of several defendants, each claiming for himself. 
 But he is not bound to bring a separate action against several 
 trespassers on his single, separate and distinct tenement or parcel 
 of land. As to him they are all trespassers, and he cannot know 
 how they claim, whether jointly or severallj' ; or, if severally, how 
 much each one claims ; nor is it necessary to make such proof in 
 order to support his action. Each defendant has a right to take 
 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 succeeds 
 in establishing his title to so much of it as he has taken defense 
 for, and in showing that he was not in possession of any of the 
 remainder disclaimed, he will be entitled to a verdict. He may 
 also demand a separate trial, and that his case be not complicated 
 
EJECTMENT IN MARTZAND. 769 
 
 or impeded by tlie issues made with others, or himself made liable 
 for costs unconnected with his separate litigation. If he pleads 
 nothing but the general issue, and is found in possession of any 
 part of the land demanded, he is considered as taking defense for 
 the whole. How earn he call on the plaintiffs to prove how in\ich 
 he claims, or the jury to find a separate verdict as to his separate 
 holding, when he will neither by his pleading nor evidence signify 
 how much he claims ? This was a fact known only to himself, 
 and oue with which the plaintiff had no concern and the jury no 
 knowledge. If a general verdict leaves each one liable for all the 
 costs, it is a necessary consequence of their own conduct, and no 
 one has a right to complain." {Greer v. Meses, 24 How. U. S. 
 E. 268.) 
 
 CHAPTEE XLIII. 
 
 THE ACTION FOE THE EECOVEET OF EEAL PEOPEETT IK THE SEV- 
 
 EEAi STATES THE PEAOTICE IN MARYLAND, VIEGINIA AND WEST 
 
 VIEGINIA. 
 
 In the state of Maryland, real property is recovered by the 
 action of ejectment ; and when a tract of land,. or contiguous tracts, 
 lie partly in one county and partly in another, an action of eject- 
 ment may be brought for the whole land in the circuit court of 
 one of the counties; provided, if one person is in possession of the 
 whole of the land, and resides in either of the counties where the 
 land lies, the action must be brought in the county where such 
 person resides, and if the person in possession does not reside in 
 either of the counties, the action must be brought in the county 
 where the greater part of the land lies, and in all such actions the 
 court will have the same power to try the same, to order writs of 
 re-survey and award writs of possession for the whole land, as if 
 the whole land lay in the county where the court is held, the writs 
 of possession to go to the sheriffs of the respective counties, and 
 be by them returned to the court issuing the same, and the sur- 
 vey must be made by the surveyor of the county where the action 
 is brought. (1 Code of Public Laws, art. 75, §§ 46, 47.) 
 
 .In the action of ejectment, as in other actions, whatever facts 
 are necessary to constitute the ground of action, defense, or reply, 
 as the case may be, must be stated in the pleading, and nothing 
 97 
 
770 LAW OF EJECTMENT AND ADVERSE ENJOTHTENT. 
 
 more ; and any declaration which contains a plain statement of 
 the facts necessary to constitute a ground of action will be suffi- 
 cient, and any plea necessary to form a legal defense will be 
 sufficient without reference to mere form ; and it is not necessary 
 to have any formal commencement or conclusion to any declara- 
 tion or other plea. (1 Code, art. 75, §§ 2, 3, 4.) 
 
 In any action of ejectment against two or more defendants they 
 may sever in their defense ; but, if plats be necessary, there must- be 
 but one set returned, which must show the claims and pretensions 
 of all the parties ; and where defendants in ejectment sever in 
 their defense, the court must apportion the costs in such manner 
 as may be reasonable and just. In all cases of a joint holding by 
 two or more persons, they may declare on a joint demise whether 
 they hold as joint-tenants, tenants in common, or in any other 
 manner. (1 Code, art. 75, §§ 48, 49, 50.) And if, on the trial of 
 an ejectment, title be shown in any one of the lessors of the plaint- 
 iff, it wnl be sufficient to authorize him to recover to the extent 
 of such title, though other lessors may be joined who have no 
 interest, or may have parted with their interest, and on the trial 
 of the action it is not necessary for any party to prove that the 
 lands in controversy have been patented ; but a patent will in all 
 cases be presumed in favor of the party showing a title otherwise 
 good. The statute also provides, that an actual inclosure shall 
 not be necessary to prove possession, but acts of exclusive user 
 and ownership, other than inclosure, may be give in evidence to 
 the jury to prove possession. (1 Code, art. 75, §§ 51, 52.) 
 
 No warrant of re-survey can issue in any action of ejectment, 
 unless the court shall be satisfied that there is a dispute about the 
 location of the lands claimed in the action ; and where the parties 
 hold or claim under the same title the lands in dispute, no warrant 
 of re-survey can issue, except in cases where the parties claim dif- 
 ferent parcels under the same title, and it appears to the court 
 there is a dispute about the location of the divisional line or lines. 
 "When the court shall consider a warrant of re-survey necessary, if 
 the same be had at the instance of the defendant, or is made neces- 
 sary by the defense taken in such case, the defendant must first 
 make his survey ; and if the warrant be had at the instance of the 
 plaintiff, he must first make his survey ; and if it shall appear to 
 the court at the trial of the cause that a survey was not necessary, 
 then the party requiring the same must pay the costs of the surveys. 
 
EJECTMENT IN MARYLAND. T71 
 
 "Where surveys and plats are necessary, the line or lines (the location 
 of which is disputed) may be located without locating tlie whole 
 tract ; so, where lines of a neighboring tract are necessary for proof 
 or illustration, such line or lines may be located without locating 
 the whole tract. The plats and certificates of survey in every case 
 may be amended at bar ; when the locations do not coi-respond 
 with the variation, the same may be amended at bar to correspond 
 therewith ; objects to which the proofs apply may be placed on 
 the plats, and witnesses may be examined who were not sworn on 
 the survey, and a witness may be shown to be interested without 
 locating his interest on the plats; provided, the court shall be sat- 
 isfied the ends of justice will be attained by such amendment of 
 plats and admission of witnesses. And in no action will plats be 
 considered as pleadings or evidence per se ; nor will any counter 
 location b6 necessary to put tlie party locating any tract, line or 
 object, on the proof of such location ; and the opposite party may 
 controvert the same without any counter location. (1 Code, art. 
 75, §§ 53-58.) 
 
 The action of ejectment will not abate by the death of either or 
 any of the parties to the same, but upon the death of any defend- 
 ant the action will be continued, and the heir or executor of the 
 defendant, or other person interested on the part of the defendant, 
 may appear to such action, and in case the proper person to defend 
 do not appear at the court at which the death is suggested, the 
 plaintiff may issue a summons, returnable to the next court, 
 directed to the proper person to defend such action, and, upon such 
 summons being served, the person summoned must appear; and 
 if such person fail to appear upon being summoned, the court 
 must issue an attachment of contempt against him, and compel 
 him to appear to such action ; and if the person summoned shall 
 refuse or neglect to appear to such action by the fourth day of 
 the court next after the court to which he may be summoned to 
 appear, then the court may cause the appearance of such person 
 to be entered, and there will be the same pfoceedings therein as 
 if such person had voluntarily appeared, and all tlie proceedings 
 had before the death of the party will be considered as proceed- 
 ings in the action, and such further proceedings must be had to 
 bring the cause fairly to trial as the court may deem proper. 
 
 If the plaintiff in the action of ejectment die before judgment 
 is given, the heir, executor, or other proper person to prosecute 
 
772 LAW OF EJECTMENT AND ADVERSE ENJ0Y3TENT. 
 
 Buch action, may appear and prosecute the same; but if such pefr- 
 6on do not appear to prosecute such action at tlie court at which 
 the death is suggested, then the defendant may issue a summons 
 returnable to the next court, directed to the proper person to prose- 
 cute such action ; and if such person, upon being summoned, shall 
 fail to appear, the court must, upon being satisfied that the person 
 so summoned is the proper person to prosecute such action, issue 
 an attachment of contempt to compel an appearance of such per- 
 son ; and if the person so summoned do not appear to prosecute 
 such action by the fourth day of the court next after the court to 
 which such summons may be returned served, judgment of nonsuit 
 will be entered, and such judgment will be as valid and have the 
 same legal consequences and effect as if the same had been entered 
 against the original plaintiff in the action ; and if the person so 
 summoned to prosecute shall appear to such action at any time 
 before judgment of nonsuit shall be entered, all proceedings in the 
 action, and such other proceedings will be had to bring the canse 
 fairly to trial, as the court may deem proper. (Code, art. 2, §§ 1, 2, 3.) 
 
 The action of ejectment in the state of Maryland, with such ex- 
 ceptions as the statute herein stated, is prosecuted about the same 
 as at common law ; and the action seems to be still brought in that 
 state in the name of a nominal plaintiff as at common law. 
 
 In a case which recently came up to the supreme court of the 
 United States upon a writ of error, to revise the judgment of the 
 circuit court for the district of Maryland, in an action of ejectment 
 brought by the plaintiff in error against the defendant to recover 
 certain lands lying in that state, the former coui-t laid down the 
 following propositions : 
 
 In Maryland the distinction between common law and equity, 
 as known to the English law, has been constantly preserved in its 
 system of jurisprudence. 
 
 The. statute of George the Second, which made lands in the 
 American colonies liable to be sold under z. fieri facias issued upon 
 a judgment iu a court of common law, did not interfere with this 
 distinction ; and under it a legal estate onlj', and' not an equitable 
 interest, could be seized under a. fieri facias. ' 
 
 In 1810 an act of assembly was passed making equitable interests . 
 subject to the process oi fi^ri facias ; but the purchaser at the sale 
 of an equitable interest under this process only buys the interest 
 "which the debtor had, and thus becomes the owner of an equitable 
 
EJECTMENT IN MARYLAND. 773 
 
 and not a legal estate; and it is not every legal interest that is 
 made liable to sale on a, fieri facias. The debtor must have a 
 beneficial interest in the property, and not a barren legal title held 
 in trnst. 
 
 In the action of ejectment in Maryland the lessor of the plaintiif 
 must show a legal title in himself to the land which he claims, and 
 the right of possession under it, at the time of the demise laid in 
 the declaration and at the time of the trial. He cannot support 
 the action upon an equitable title, however clear and indisputable 
 it may be, but must seek his remedy in chancery. 
 
 When there was a deed of land to a debtor in trust, which con- 
 veyed to him a naked legal title, he took under it no interest that 
 could be seized and sold by the marshal upon a, fieri facias ; and 
 the purchaser at such sale could not maintain an action of eject- 
 ment under the marshal's deed. But the plaintiff in the ejectment 
 suit offered evidence to prove that the trusts in the deed were 
 fraudulent, and that the debtor purchased the land and procured 
 the deed in this form, in order to liinder and defraud his creditors; 
 and this proof was offered to show that the debtor had a beneficial 
 interest in the property, liable to be seized and sold for the pay- 
 ment of his debts. This parol evidence could not be introduced 
 to enlarge or change the legal estate of the grantee against the 
 plain words of the instrument. If the evidence were admissible, 
 the fraudulent character of the trusts, as against his creditors, 
 could not enlarge his legal interest beyond the terms of the deed. 
 Although the debtor may have paid the purchase-money, that 
 circumstance did not establish a resulting trust in his favor. The 
 lessors of the plaintiff had a plain and ample remedy in chancery, 
 where all the parties interested could be brought before the court. 
 The instruction of the court below was, therefore, correct, that 
 the plaintiff could not recover in the action of ejectment upon suclx 
 a state of facts. 
 
 Tliese propositions were laid down and discussed by Mr. Chief 
 Justice Taney, himself a Maryland lawyer, and they are undoubt- 
 edly in accordance with the true policy of the state. .{Lessee of 
 Smith V. MoGann, 24 How. U. S. C. E. 398.) 
 
 The state courts of Maryland hold that, to enable the lessors of 
 the plaintiff to sustain the action of ejectment, it is essential that 
 they be clothed with the legal title and tlie right of possession at 
 the time the action is instituted. The plaintiff must always, in 
 
774 LAW OF EJECTItENT AND ADVERSE ENJOYMENT. 
 
 the first instance, make out a legal and possessory title to tlie 
 premises in question, and the defendant's evidence may be con- 
 fined to falsifying his adversary's proofs, or rebutting the presump- 
 tions ■which may arise from them. IJe need not ofier any evidence 
 of title in himself, or of title in a third person. It is sufiicient if 
 he makes it appear to the jury that, a legal and possessory titlo 
 does not subsist in the plaintiff. It seems to be a settled principle 
 of ejectment law in Maryland, that the plaintiff must recover, if 
 at all, on the strength of his own title, and cannot do so because 
 of the weakness of the title of the defendant. The plaintiff must 
 show that he has a legal title to the land and a right of possession, 
 and he cannot establish such legal title in himself without show- 
 ing that he derived the same from some valid recognized source. 
 {Wilson's Lessee v. Inloes, 11 Gill & Johns. E. 351. Crosap's 
 Lessee v. Hutson, 9 Gill's K. 269. MitcJheWs Lessee v. Mitchell, 
 1 Md. R. 44. JIammond's Lessee v. Ingloes, 4 ib. 138. Cvlvin v. 
 Warford''s Lessee, 20 ib. 357. Same Case, 14 ib. 532. Elwood v. 
 Lawrence's Lessee, 27 ib. 200. Sprigg^s Lessee v. Moale, 28 ib. 497.) 
 
 It is held in the state of Maryland, under their present practice, 
 that the pleadings in the action of ejectment may be amended, 
 within the same principles as in other actions. {The Northern 
 Central Liailway Company v. The Canton Company of Baltimore, 
 Lessee, 24 Md. R. 492.) 
 
 The following propositions have been recently settled by the 
 court of appeals of Maryland, which are important to be noted : 
 
 In ejectment no title paper not properly located on the plats is 
 admissible in evidence. But, where the grant and the deed are 
 the same, location of both is imnecessary. So, where the whole 
 of a tract is located on the plats, a deed of the whole may be 
 given in evidence, though not itself located. 
 
 Where two deeds, one for a specific portion and the other for the 
 residue of the same tract, are offered in evidence, the patent being 
 located, they are admissible without being otherwise located. 
 
 Certainty is required in locations, and " where the title paper is 
 so unintelligibly represented on the plats and explanations, as that 
 it is almost impossible for either the court or jury to say whether 
 the locations are truly made, such title paper cannot be used as 
 proof." 
 
 Where a party takes defense on warrant, and the plaintiff has 
 located his pretensions, such location is admitted unless the de- 
 
EJEdTMENT IN MARYLAND. 775 
 
 fendant counter-locates ; if the counter-location covers the same 
 ground as the locatiobs of the plaintiff, it is equally an admission 
 of the correctness of the latter. 
 
 "Where the same title paper is located by both parties in the 
 same manner, covering the same ground, the location is binding 
 upon both, and neither is allowed to dispute its correctness. 
 
 "Where in ejectment there is no dispute between the parties in 
 regard to locating, the real question being as to the title only, 
 while, under the plea of not guilty, the onus of the establishing a 
 good title is upon the plaintiffs, they may commence with any part 
 of their evidence, and are not compelled to pursue any particular 
 order of proof in tracing their title. 
 
 Tiiese propositions were laid down by Bartol, J., as being 
 familiar and well established rules of law, applicable to the case 
 under consideration, and were acquiesced in by the other members 
 of the court. {Denrt v. Jones, 26 Md. K. 462, 475, 476. And vide 
 Hall V. Gittings, 2 Har. & Johns. R. 383. Beale v. Bayard, 5 ib. 
 127. Hall v. Gough, 1 ib. 119. Budd v. Brooke, 3 Gill's E. 
 227, 228. Armstrong v. Eisteau, 5 Md. R. 256, 275, 276.) 
 
 On a second trial, in the appellate court, in ejectment, .between 
 the same parties and those claiming under them, on the same sub- 
 ject-matter, it is held that the previous decision ought to be con- 
 sidered conclusive, unless glaring injustice has been done, or some 
 egregious blunder committed. But, to give the binding decision 
 these conclusive qualities, it ought to be explicitly declared and 
 perfectly understood, and, to become the law of the case, it ought 
 definitely to settle the rights of the litigant parties. {Hammond 's 
 Lessee v. Inloes, 4 Md. E. 138.) 
 
 The common-law action for mesne profits may be brought in the 
 state of Maryland ; and it is held there, that, although the action 
 cannot be maintained before a recovery in ejectment,. it may be 
 brought pending a writ of error in ejectment, and the plaintiff 
 may proceed to ascertain his damages and sign his judgment, but 
 the court will stay execution until the writ of error is determined. 
 {Mitchell \. Mitchell, 1 Md. E. 59.) 
 
 It is held that, in an action of trespass for mesne profits, evidence 
 of the net profits made by the owner of an adjoining farm is not 
 admissible for the purpose of showing what was made upon the 
 land for profits of which the suit was brought. In this case, on 
 the decision of the court below, that, in an action of trespass for 
 
776 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 mesne profits, the plea of limitations bars a recovery beyond 
 three years prior to the suit, the court of appeals was divided in 
 opinion. {Mitchell v. Mitchell, 10 Md. E. 234.) 
 
 The most of the rules and principles recognized in the action of 
 ejectment at common law, and the action for mesne profits under 
 the common-law practice, are applicable to the same actions in the 
 state of Maryland. The cases in which the action of ejectment 
 may be maintained in Maryland are stated in a previous chapter. 
 {Ante, ch. 3.) 
 
 In the state of Yirginia the practice in the action of ejectment 
 is similar to what it was under the Revised Statutes of the state 
 of New York. The action is commenced by the service of a decla- 
 ration, in which the name of the real claimant must be inserted as 
 plaintiff; and all the provisions of law concerning a lessor of a 
 plaintiff are made to apply to such plaintiff. The person actually 
 occupying the premises claimed must be named as defendant in 
 the declaration. If the premises be not occupied the action must 
 be against some person exercising acts of ownership thereon, or 
 claiming title thereto, or some interest therein, at the commence- 
 ment of the suit. If a lessee be made a defendant at the suit of a 
 party claiming against the title of his landlord, such landlord may 
 appear and be made a defendant with, or in the place of, his lessee. 
 
 It is sufiicient for the plaintiff in the action of ejectment to aver 
 in his declaration that at some day specified therein, which must 
 be after his title accrued, he was possessed of the premises claimed, 
 and being so possessed thereof, that the defendant afterward, on 
 some day to be stated, entered into such premises, and that he 
 unlawfully withholds from the plaintiff the possession thereof, to 
 his damage, such sum as the plaintiff shall state. The premises 
 claimed must be described in the declaration with convenient cer- 
 tainty, so that, from such description, possession thereof may be 
 delivered. The plaintiff must also state whether he claims in fee, 
 or for his life, or the life of another, or for years, specifying such 
 lives or the duration of such term ; and when he claims an undi- 
 vided share or interest he must state the same. 
 
 The declaration in the action may contain several counts, and 
 several parties may be named as plaintiffs jointly in one count, and 
 separately in others. 
 
 There must be subjoined to the declaration a notice in writing, 
 by the plaintiff or his attorney, addressed to the defend an tj and 
 
EJECTMENT IN VIRGINIA. Ill 
 
 notifying him that the said declaration will be filed on some speci- 
 fied rule day in the clerk's office of the court in which the suit is 
 to be prosecuted, or in court, on some named day in the then next 
 term of said court. The declaration and notice must be served in 
 the same manner as other notices. 
 
 Upon filing the declaration, with proof of the service of notice 
 thereof as aforesaid, the plaintifi" is entitled to a rule upon the 
 defendant to appear and plead at the next rule day, if the declara- 
 tion be filed at rules, or if filed in court, to appear and plead within 
 such time as may be prescribed by the court ; and if upon service 
 of such rule he shall fail to appear and plead, his default may be 
 entered and judgrnent given against him. 
 
 The statute provides that the defendant may demur to the decla- 
 ration as in personal actions, or plead thereto, or do both. But he 
 can plead the general issue only, which must be, that the defend- 
 ant is not guilty of unlawfully withholding the premises claimed 
 by the plaintiff in the declaration. Upon such plea the defendant 
 niay give the same matter in evidence, and the same proceedings 
 must be had, as upon a plea of not guilty, in the old action of 
 ejectment, except as otherwise provided by the statute, and noted 
 hereafter ; and he may also give in evidence any matter which, 
 if pleaded in the old writ of right, would bar the action of the 
 plaintiff. 
 
 The old consent rule is abolished ; and the plaintiff need not 
 prove an actual entry on or possession of the premises demanded, 
 ox receipt of any profits thereof, nor of lease, entry or ouster, ex- 
 cept as is specially provided ; but it is made sufiicient for him to 
 show a right to the possession of the premises at the time of the 
 commencement of the suit. 
 
 If the action be by one or more tenants in common, joint-tenants 
 or coparceners, against their co-tenants, the plaintiff is required to 
 prove actual ouster, or some other act amounting to a total denial 
 of the plaintiff's right. If the action be against several defend- 
 ants, and a joint possession of all be proved, and the plaintiff be 
 entitled to a verdict, it will be against all, whether they pleaded 
 separately or jointly ; and if the action be against several defend- 
 ants, and it appear on the trial that any of them occupy distinct 
 parcels in severalty or jointly, the plaintiff may recover several 
 judgments against them for the parcels so held by one or more 
 of the. defendafttSj separately from the othei's. The plaintiff may 
 98 
 
778 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 recover any specific or any undivided part or share of the premises, 
 though it be less than he claimed in the declaration. 
 
 In a controversy affecting real estate, possession of part ■will not 
 be construed as possession of the whole, when an actual adverse 
 possession can be proved. 
 
 A vendor, or any one claiming tinder him, cannot at law, any 
 more than in equity, recover against a vendee, or those claiming 
 under him, lands sold by such vendor to snch vendee, where there 
 is a writing, stating the purchase and the terms thereof, signed by 
 the vendor or his agent, and there has been such payment or per- 
 formance of what was contracted to be paid or performed on the 
 part of the vendee, as would in equity entitle him, or those claim- 
 ing under him, to a conveyance of the legal title of such land from 
 the vendor, or those claiming under him, without condition. 
 
 The payment of the whole sum, or the performance of the whole, 
 duty, or the accomplishment of the whole purpose, which any 
 mortgage or deed of trust may have been made to secure or effect, 
 will prevent the grantee or his heirs from recovering at law, by 
 virtue of such mortgage or deed of trust, property thereby con- 
 veyed, whenever the defendant would be entitled to a decree, 
 i-evesting the legal title in him, without condition. But a defend- 
 ant will not be allowed to avail himself of either of these provis- 
 ions of the statute with respect to contracts and mortgages of real 
 property, unless notice in writing of such defense shall have been 
 given sixty days before the trial. Whether he shall or shall not 
 make or attempt such defense, he will not be precluded from 
 i-esorting to equity for any relief to which he would have been 
 entitled, if these provisions had not been enacted. 
 
 If the jury bo of opinion for the plaintiffs or any of them, the 
 verdict must be for the plaintiffs, or for such of them as appear to 
 have riglit to the possession of the premises, or any part thereof, 
 and against such of the- defendants as were in possession thereof, 
 or claimed title thereto, at the commencement of the action, when 
 any plaintiff appears to have no such right, the verdict as to such 
 plaintiff must be for the defendants, when the right of the plaintiff 
 is proved to all the premises claimed, the verdict must be for the 
 premises generally, as specified in the declaration, but if it bo 
 proved to only a part or share of the premises, the verdict must 
 specify such part particularly, as the same is proved, and with the 
 same certainty of description as is required in the declaration. If 
 
EJECTMENT IN VIRGINIA. 779 
 
 the verdict be for an undivided share or interest in tlie premises 
 claimed, it must specify the same, and if for an undivided share 
 or interest of a part of the premises, it must specify such share or 
 interest, and describe sueli pai-t as before required. The verdict 
 must also specify the estate found in the plaintiff, whether it be in 
 fee or for life, stating for whose life, or whether it be a term of 
 years, and specifying the duration of such term. If the right or 
 title of the plaintiff in ejectment expire after the commencement 
 of the writ, but before trial, the verdict must be according to the 
 fact, and judgment will be entered for his damages, sustained from 
 the withholding of the premises by the defendant, and as to the 
 premises claimed, the judgment will be, that the defendant go 
 thereof- without day. 
 
 The judgment for the plaintiff will be, that he recover the pos- 
 session of the premises, according to the vei'dict of the jury, if 
 there be a verdict, or if the judgment be by default, or on demur- 
 rer, according to the description thereof in the declaration. If the 
 action be brought to recover dower which has not been assigned 
 before the commencement of the action, the court in which the 
 judgment is rendered, may have dower assigned by commissioners 
 appointed for that purpose. If the plaintiff file with his declara- 
 tion a statement of the profits and other damages which he means 
 to demand, and the jury find in his favor, tliey arc required at 
 the same time, unless the court otherwise order, to assess the dam- 
 ages for mesne profits of the land for any period not exceeding five 
 years previously to the commencement of the snit until the verdict, 
 and also the damages, for any destruction or waste of the buildings 
 or other property, during the same time, for which the defendant 
 is chargeable. 
 
 If there be no issue of fact tried in the cause, and judgment is 
 to be rendered for the plaintifi' on demurrer, default or otherwise, 
 the damages must be assessed by the court, unless either party 
 shall move to have them assessed by a jury, or the court shall 
 think proper to have them so assessed, in which cases a jury will 
 be impaneled to assess them. 
 
 If the defendant intends to claim allowance for improvements, 
 made upon the premises by himself or those under whom he claims, 
 he must file with his plea, or at a subsequent time before tlie trial 
 (if for good cause allowed by the court), a statement of his claim 
 therefor, in case judgment be rendered for the plaintiff. In such 
 
780 LAW OF EJSCT3tENT AND ADVERSE ENJOYMENT. 
 
 case the damages of the plaintiff, and the allowance to the defend- 
 ant for improvements will be estimated, and the balance ascer- 
 tained, and judgment therefor rendered, as prescribed by the 
 statute in respect to allowance for improvements. On the motion 
 of either party, the court may order the assessment of such dam- 
 ages and allowance, to be postponed until after the verdict on the 
 title is recorded. A judgment in an action of ejectment is made 
 conclusive, as to the title or right of possession established in such 
 action, upon the party against whom it is rendered, and against 
 all persons claiming from, through or under such party, by title 
 accruing after tlie commencement of such action ; except that if 
 any person against whom such judgment is rendered, shall be, at 
 the time of the judgment an infant, married woman, or insane, 
 the judgment will be no bar to an action, commenced within five 
 years after the removal of such disability. None of these provisions 
 of the statute are to prevent the plaintiff from recovering mesne 
 profits, or damages done to the premises, from any person other 
 thq^n the defendant, who may be liable to such action. 
 
 No writ of right, writ of entry or writ of formedon can now be 
 brought in the state of Virginia. (Code of 1860, tit. 40, ch. 135.) 
 
 Any defendant against whom a decree or judgment maybe ren- 
 dered for land, where no assessment of damages has been made 
 under any of the foregoing provisions, may, at any time before the 
 execution of the decree or judgment, present a petitition to the 
 court rendering such decree or judgment, stating that he or those 
 under whom he claims, while holding the premises under a title 
 believed by him or them to be good, have made permanent im- 
 provements thereon, and praying that he may be allowed for the 
 same over and above the value of the use and occupation of such 
 land ; and thereupon the court may, if satisfied of the probable 
 truth of the allegation, suspend the execution of the judgment or 
 decree, and impanel a jury to assess the damages of the plaintiff 
 and the allowances to the defendant for such improvements. The 
 jury, in assessing such damages, in every case must estimate 
 against the defendant the clear annual value of the premises 
 dnring the time he was in possession thereof (exclusive of the use 
 by the tenant of the improvements thereon made by himself or 
 those under whom" he claims), and also the damage for wast6 or 
 other injury to the premises committed by the defendant. The 
 defendant will not be liable for such annual value for any longer 
 
EJECTMENT IN VIRGINIA. 781 
 
 time than five years before the suit, or for damages for any such 
 waste or other injury done before said five years, unless Avlien he 
 claims for improvements as aforesaid. If the jury shall be satis- 
 fied tliat the defendant, or those under whom he claims, made on 
 the premises, at a time when there was reason to believe the title 
 good under which he or they were holding the said premises, per- 
 manent and valuable improvements, they must estimate in his 
 favor the value of such improvements as were so made before 
 notice in writing of the title under which the plaintiff claims, not 
 exceeding the amount actually expended in making them, and not 
 exceeding the amount to which the value of the premises is actu- 
 ally increased thereby at the time of tlie assessment. If the sum 
 estimated for. improvements exceed the damages estimated against 
 the defendant, the jury must then estimate against him, for any 
 time before the said five years, the rents and profits accrued 
 against, or damage for waste or other injury done by, him or those 
 under whom he claims, so far as may be necessary to balance his 
 claim for improvements ; but he will not be liable for any excess 
 in such case. After ofisetting tlie damages assessed for the plaintiff 
 and the allowances to the defendant for improvements, if any, the 
 jury must find a verdict for the balance for the plaintiff or defend- 
 ant, as the case may be, and judgment or decree will be entered 
 therefor according to the verdict. Any such balancfe dne to the 
 defendant will constitute a lien upon the land recovered by the 
 plaintiff, until the same shall be paid. If the plaintiff in such 
 case be 'only a tenant for life, he may be reimbursed for what he 
 has to pay for such improvements from the remaindei-man or 
 reversioner, and the same will be a lien upon the premises there- 
 for, and he may keep possession of the premises until thd amount 
 is paid. ISTothing in the statute in respect to rents, profits and 
 improvements will apply to any suit brought by a mortgagee or 
 his heirs or assigns against a mortgagor or his heirs or assigns for 
 the recovery' of the mortgaged premises. 
 
 When the defendant claims allowance for improvements, the 
 plaintiff may, by an entry on the record, require the value of his 
 estate in the premises to be ascertained without the improvements, 
 and then, if judgment is rendered for him, he may enter on the 
 record his election to relinquish his estate in the premises to the 
 defendant, at the value so ascertained, and the defendant may 
 thenceforth hold the estate that the plaintiff had in the premises, 
 
782 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 provided he pay therefor the said value, with interest, in the man- 
 ner in whicli the court may order it to be paid ; and, if payment 
 is not made as ordered, the court may order the land to be sold, 
 and tlie proceeds applied to the payment of such value and inter- 
 est, and the surplus, if any, to be paid to the defendant. If the 
 party by or for whom the land is claimed in the suit be a feme 
 covert, minor, or insane, such value will be deemed to be real 
 estate, and be disposed of, as the court may consider proper, for 
 tlie benefit of the persons interested therein. If the defendant or 
 his heirs or assigns shall, after the premises are so relinquished to 
 him, be evicted thereof by force of any better title than that of 
 the original plaintiff, the person so evicted may recover from such 
 plaintiff" or his representatives the amount so paid for the premises, 
 as so much money had and received by such plaintiff, in his life- 
 time, for the use of such person, with lawful interest thereon from 
 tlie time of such payment. (Code of 1860, tit. 40, ch. 136, §§ 10-15.) 
 The provisions of sections 10-15 inclusive of the statute of Yii'- 
 ginia above referred to are taken substantially from the Revised 
 Statutes of Massachusetts, chapter 101, sections 32-39 inclusive. 
 
 Under the Code of Virginia the supreme court of the United 
 States has held that ejectment may be properly brought against 
 persons who have made entries and surveys of any part of the land 
 in controversy, and are setting up claims to it, though not in occu- 
 pation of it at the time the suit is brought. The policy of the law 
 is obvious. It is, that persons out of possession who set up a false 
 claim to land may, by a suit in ejectment, which is the legal and 
 proper mode of trying title, have that claim brouglit to this test. 
 The act provides that such a judgment is conclusive against all the 
 parties ; and thus the purpose of the law to quiet title by a verdict 
 and judgment in such cases is rendered effectual. 
 
 The doctrine was also laid down in the same case, that there 
 must be title somewhere to all land in this country — either in 
 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 ; and, 
 where there is no claim of right, the possession cannot be adverse 
 to the true title. And the instruction given at the instance of the 
 plaintiffs in the court below, the purport of which was, that, if 
 the plaintiffs' title was found to be the paramount title, and any 
 of the defendants entered upon and took possession of the land, 
 
KJECTMENT IN VIRQXNIA. 7S3 
 
 without title or claim, or color of title, such dccupancy was not 
 adverse to the title of plaintiffs, but subservient thereto, was held 
 by the appellate court to be sound, and the proposition was 
 affirmed. {Harvey v. Tyler, 2 Wallace's E. 328.) 
 
 The language of the Code of Virginia, in respect to the proper 
 parties defendants in an action of ejectment, is identical with that 
 of the state of New York upon the same subject ; and the con- 
 struction given to it in the ease of Harvey v. Tyler was held to be 
 the true one by the old supreme court of the latter state. {Ban- 
 yer v. Einpie, 5 Hill's E. 48. SKav) v. McGraw, 12 Wend. E. 558. 
 Edwards v. Farmers' Fire Insurance and Loan Co., 2i ib. 467.) 
 
 The rule laid down by the supreme court of the United States, 
 in respect to the requisites of an adverse possession, is similar to 
 what was given in a recent case by the court of appeals of Vir- 
 ginia. The court there says ; " An entry by one upon land in pos- 
 session, actual or constructive, of another, in order to operate as 
 an ouster, and gain possession to the parties entering, must be 
 accompanied by a claim of title." {KincTieloe v. Tracewells, 11 
 Gratton's E. 605.) 
 
 In an early case in the court of appeals of Virginia, and long 
 before the enactment of the statute now in force there, it was 
 declared that the tenants in possession are the proper, if not the 
 natural, defendants to an ejectment. Although the landlord has a 
 right to be made a defendant, through fear that he may be injured 
 by a combination between the plaintiff and his tenant, he may 
 waive this right, or, having asserted it, lie may relinquish it by 
 consent to the plaintiff. {Hei'bert v. Alexander, 2 Call's E. 41 8, 
 502.) But it has been recently held that, if a tenant is sued in 
 ejectment for the land so held by him, his landlord is entitled, 
 under the act. Code, chapter 175, section 5, to be made a defendant 
 to defend the action. {Mitchell v. JBanatta, 17 Gratt. E. 455.) 
 
 So also it was very early held by the Virginia court of appeals 
 that an ejectment may be brought against' several persons in pos- 
 session of any part of a tract of land claimed by the lessor of the 
 plaintiff; and also that several tenants claiming severally parts of 
 the land sued for may be sued in an action of ejectment. {Cam- 
 den v. Ilashill, 4 Eandolph's E. 462. Stuart 's Heirs v. Coulter, 
 3 ib. 74.) 
 
 If in ejectment the demise and ouster be laid precedent to the 
 plaintiffs title, the same is held, in an old case, to be cured by the 
 
784: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 act of jeofails in force in Yirginia. {Duval v. Bill, 3 Call's E. 362.) 
 And it has more recently been held that where the quantity and 
 boundaries of the land described in the count and in the verdict 
 vary from each other ; but the verdict iinds that the land described 
 is the tenement mentioned in the count ; it is to be presumed that 
 the description given in the count is a mistaken description, and 
 that the land recovered is the land demanded. And in the same 
 case it was held that in a writ of right the tenant, to defend his 
 possession under the statute of limitations, may show a possession 
 anterior to his patent ; and, to show color of title, may introduce 
 the entry and survey upon which his patent issued. But, as there 
 can be no adversary possession against the commonwealth, he can- 
 not show possession further back than the senior grant. {Kir^er 
 V. Rankings Heirs, 11 Gratton's E. 420.) 
 
 It is held that a plaintiff in ejectment may recover under one 
 or the other of two demises of the same land from different per- 
 sons. {Hopldns v. Ward, 6 Munf. E. 38.) It seems, however, that 
 a plaintiff in ejectment cannot recover on a demise from a person 
 who is dead at the time the action is brought. {See v. Greenlee, 
 6 Munf E. 303.) 
 
 A party in peaceable possession of land, who is ousted by one 
 having no title or authority to enter upon the land, may maintain 
 ejectment to recover the premises upon his possession merely ; and 
 his right to recover cannot be resisted by showing that there is or 
 may be an outstanding title in another, but only by showing that 
 the defendant himself either has title or authority to enter under 
 the title. {Tapsoott v. Colls, 11 Gratt. E. 172.) But, in eject- 
 ment, if it appear from the evidence that the land in controversy 
 was vacant when the defendant came to the possession of it peace- 
 ably and quietly, without any privity between him and the lessors 
 of the plaintiff or those under whom they claim, the plaintiff can- 
 not recover, upon the ground of the prior possession, of the lessors, 
 without proving twenty years' uninterrupted adverse possession on 
 their part or on the part of those under whom they claim, or show- 
 ing a right to the possession by the death and seisin, in the manner 
 prescribed by the act of the assembly, of some person under whom 
 they claim. {Moody v. M'Kine, 5 Munf E. 374.) 
 
 It is held that the possession of one coparcener or tenant in com- 
 mon being the possession of all, none in possession of the whole 
 subject can avail themselves of such possession as a defense under 
 
BJECTitENT IN vinaiNiA. 785 
 
 the statute of limitations against the rest, without an actual disseisin 
 01' ouster of their coparceners or co-tenants. (Purcell v. Wilson^ 
 4 Gratt. E. 16.) 
 
 Though in ejectment the plaintiffs in their declaration claim the 
 whole of a tract of land, the jury may find for the plaintifis for an 
 undivided interest in it. And though when less land is recovered 
 than is demanded, the boundaries of the land recovered should be 
 designated ; yet, when an undivided interest in it is recovered; it 
 is impossible to set out the boundaries; but the interest being 
 certain, that is sufficient. {Callis v. Kemp, 11 Gratton's R. 78. 
 And vide MoMichen v. Amos, 4 Eand. R. 134. Clwy v. White, 
 1 Munf R. 162.) 
 
 In respect to equitable defenses, it has been held that the 
 statute authorizing the defendant in an ejectment to set up an 
 equitable title as a defense to the actit5n, limits that defense to 
 cases where the whole contract, and its precise terms, is manifested 
 by plain written evidence. The written contract itself must be 
 produced before the jury; and pai'ol evidence of its contents is 
 inadmissible, though it may have been lost or destroyed. The 
 equitable defense under the statute is also limited to mortgages 
 and deeds of trust, when the mortgage money has been fully paid, 
 or the trust completely performed, or to sales, when the vendee has 
 paid all the purchase-money and performed every thing incumbent 
 on him, so as to entitle him to a specific execution of the contract 
 in equity, and a conveyance of the legal title, without any condition 
 pi'oper in equity to be on him imposed. It must be a sale, and 
 not a partnership, in the acquisition of the land ; and the terms of 
 the contract must be plain. {Davis v. Trays, 3 Gratt. E. 283.) 
 
 "With respect to the verdict in the action of ejectment, it was 
 held in an early case that a verdict in such action, finding for the 
 plaintiff in general terms, a certain "nurnher of acres part of the 
 premises in the declaration mentioned," without designating the 
 boundaries of such part, or referring to some certain standard to 
 supply such defect, is too uncertain to warrant a judgment upon 
 it. {Gregory v. Jackson, 6 Munf. E. 25.) But in a much earlier 
 case it was held that, if in ejectment the jury find " for the plaint- 
 iff one cent damages," the court inay extend the verdict, and make 
 it read: "We, of the jury, find for the plaintiff the lands in the 
 declaration mentioned, and one cent damages." {McMv/rray v. 
 (?'i\reaZ,l Call's E. 216.) 
 S9 
 
786 LAW OF EJECTMENT-:Am) ADTBBSE MNJOTitENT. 
 
 It is held that a plea in abatement is admissible in an action of 
 ejectment. The act, Code, chapter 135, section 13, refers only to 
 pleas in bar of the action. And when a defendant in ejectment, 
 admitting that he was mistaken as to the matter pleaded in abate- 
 ment, and upon this admission submitting the issue on the plea to 
 the court, at the same time asked leave to file the plea of " not 
 guilty," the court held that this was a waiver of the plea in abate- 
 ment, and that he should have been permitted to file the plea of 
 not guilty. {James River and Kanhawa Company v. Robinson, 
 16 Gratt. E. 434.) 
 
 In an action of ejectment, if there is a claim by the plaintifi" for 
 mesne profits and damages for waste, and by the defendant for 
 improvements under sections 30 and 32 of chapter 135 of the Code, 
 both claims must be passed upon by the same jury. And when 
 the statements are filed with the declaration and plea, the jury 
 sworn to try the issue in ejectment may make all the inquiries 
 required at the same time that they try the issue ; or the inquiries 
 may, if the court shall so order, be made by the same jury after 
 the verdict on the title is recorded ; or by a new jury to be impan- 
 eled. If the defendant claims for improvements on the land, the 
 plaintiff may, at any time before a judgment is rendered on the 
 assessment of the value of the improvements, though after the jury 
 which tried the issue or passed upon the defendant's claims for 
 improvements has been discharged, require that the value of his 
 estate in the premises, without the improvements, shall be ascer- 
 tained. The value of the plaintiff's estate in the premises, with- 
 out the improvements, is to be ascertained as at the time when the 
 assessment of the value of the improvements was made. {Goodwyn 
 T. Myers, 16 Gratt. K. 336. And vide Pulliam v. Ale, 15 ib. 54.) 
 
 It appears to be held in Virginia (and the rule seems to be a 
 sensible one) that when a mortgagor leases the mortgaged premises 
 subsequent to his mortgage, and the mortgagee gives the lessee 
 notice to pay him the rent, and then recovers judgment for posses- 
 sion in ejectment, he may recover the mesne profits accruing after 
 Bucli notice. {Bank of Washington v. IIu;pp, 10 Gratt. E. 23.) 
 
 The cases in which the action of ejectment may be brought are 
 given in a previous chapter. {Ante, ch. 3.) 
 
 In the state of West Virginia they have recently adopted a new 
 code, but, a .copy of it has not yet been received at the congressipnal 
 library in Washington, or at the state library in Albany, if the 
 
feame has been published, and it is therefore impossible to give the 
 laws in respect to the action for the recovery of real property in 
 that state. The omission is to be regretted, but it cannot reason- 
 ably be avoided. 
 
 CHAPTEE XLIY. 
 
 THE ACTION FOE THE EECOVEEY OF EEAL PEOPEETY IN THE SEVEEAL 
 STATES — THE PEACTICE IN KENTUCKY, TENNESSEE, NOETH CAEO- 
 LINA AND SOUTH CAEOLINA. 
 
 In the state of Kentucky, a code of practice in civil cases was 
 adopted by the general assembly in 1854-, by which all forms 
 of actions and suits then existing were abolished, and one form of 
 action for the enforcement or protection of private rights, and the 
 redress or prevention of private wrongs, was provided, to be called 
 a civil action. This code, with some amendments which have 
 been made to it from time to time, is still in force in the state. 
 
 In a civil action, the party complaining is known as the plaint- 
 iff, and the adverse party as the defendant, (Civil Code of Prac- 
 tice, title !,§§!, 2.) And every action must be prosecuted in the 
 name of the real party in interest, except he be a person judicially 
 found to be of unsound mind, when the action must be brought by 
 his committee, or, if he has none, by his next friend. (Civil Code, 
 §§ 30, 60.) 
 
 An action for .the recovery of real property, like other actions 
 in the state, is commenced by filing, in the office of the clerk of 
 the proper court, a petition, and causing a summons to be issued 
 thereon, and the summons must be in the form and served as in 
 other cases. (Civil Code, §§ 65-92.) The action must be brought 
 in the county in which the subject of the action, or some part 
 thereof, is situated ; and claims for the recovery of specific real 
 property, and the rents, profits and damages for withholding the 
 same, may be united in the same petition, where 6ach affects all 
 the parties to the action. (Civil Code, §§ 93, 111.) And the 
 plaintiff may strike from his petition any cause of action, at any 
 time before the final submission of the case to the jury, or to the 
 court when the trial is by the court. (Civil Code, § 112.) 
 
T'SS LAW OF EJECTMENT AND ADVERSE EKJOTMENT. 
 
 The plaintiff's petition must be in the form irescribed in other 
 actions, and the land for which the action is brought must be 
 described therein with such convenient certainty as to enable an 
 officer holding an execution to identity it. (Code, §§ 118, 119, 
 152.) The petition may be in the following form : 
 
 FRANKLIN CIRCUIT COURT. 
 
 John Smith, plaintiff, 1 
 
 agt. > Petition. 
 
 EiCHAKD Jones, defendant. ) 
 
 The plaintiff, John Smith, states that he is the owner, and 
 entitled to the possession of a tract of land in Franklin county, 
 containing seventy-five acres, and bounded on the north and west 
 by the Kentucky river, on the south by the land of John Craig, 
 and on the east by the land of Thomas Page; that the defendant, 
 Eichard Jones, now holds possession of the land without right, 
 and for two years past has unlawfully kept the plaintiff out of 
 possession. 
 
 Wherefore, he prays judgment for the recovery of the land, and 
 two hundred dollars damages, for being kept out of possession, 
 and for other proper relief. JOHN SMITH. 
 
 The defendant answers the petition in an action for the recovery 
 of real property the same as in other actions, or a dereiurrer may 
 be interposed thereto, for the same causes as will justify a demur- 
 rer in other cases ; and the general rules in respect to pleadings, 
 and mistakes in pleadings, and amendments, provided for other 
 actions will apply to the action for the recovery of real property. 
 (Civil Code, §§ 125, 135, 137, 138, 140-166.) The defendant's 
 answer may be in the following form : 
 
 FRANKLIN CIRCUIT COURT. 
 John Smith, plaintiff, ) 
 
 agt. j- Answei. 
 
 KiCHABD Jones, defendant. ) 
 
 The defendant, Eichard Jones, admits that the plaintiff is the 
 legal owner of 'the land mentioned in his petition, but on the first 
 day of September, 1848, the plaintiff, by a written contract filed 
 herewith, agreed to sell the land to the defendant, at the price of 
 one thousand dollars, payable twelve months after said date, and 
 placed the defendant in possession of the land as purchaser, and 
 
EJECTMENT IN KENTUCKY. 789 
 
 the defendant has offered, and now offers, to pay to the plaintiff 
 the full amount due to him for the price of the same. 
 
 Wherefore, he prays judgment, that the plaintiff convey to him 
 the land, and that his possession be quieted, and for other proper 
 relief. EICHAED JONES. 
 
 To such an answer as the above, a reply on the part of the 
 plaintiff will be necessai-y, which may be in the following form • 
 
 FEANKLIN CIRCUIT COURT. 
 John Smith, plaintiff, 1 
 
 agt- I Reply. 
 
 Richard Jones, defendant. ) 
 
 The plaintiff, John Smith, admits that he made the contract in 
 writing mentioned in the defendant's answer, but afterward in the 
 month of September, 1848, the plaintiff and defendant, by a verbal 
 agreement, rescinded said contract, and defendant then agreed to 
 restore to the plaintiff the possession of the land, on the first day 
 of November, 1848, which the defendant has failed to do. 
 
 JOHN SMITH. 
 
 The pleadings in the action to recover real property must be 
 verified, the same as in other actions; and the action for the 
 recovery of real property is brought to trial, and disposed of sub- 
 stantially as other actions are, and generally the practice is the 
 same in actions for the recovery of real property as in other actions. 
 It may also be affirmed, that the most of the rules arid principles 
 governing the action of ejectment at common law are applicable to 
 actions for the recovery of real property in Kentucky, except in 
 matters of practice and the admissibility of witnesses. 
 
 The court of appeals have decided that, although, as declared in 
 section 111 of the Civil Code, the plaintiff may unite in the same 
 petition " claims for the recovery of specific real property, and 
 the rents, profits and damages for withholding the same," this is a 
 privilege of which he may or may not avail himself in his dis- 
 cretion ; and if the plaintiff shall elect to sue for the recovery of 
 land merely, or for that and damages for being kept out of posses- 
 sion, in the same action, and seek by another suit to recover dam- 
 ages for trespasses and injuries committed by the destruction of 
 timber or other property upon or appurtenant to the land, a jildg- 
 
^90 LAW OF EJmTMENT AND AttVESHE i'NJOTMEyT. 
 
 inent in the one ease would not, in the opinion of the court, bar a 
 recovery in the other. {Burr v. Woodrow, 1 Bush's K. 602.) But 
 if a claim for rents, issues and profits of the land is set up in the 
 action for the recovery of the land, it is a bar to another and 
 separate suit for rents ; although the judgment in the action for 
 the recovery of the land is no bar to a recovery for anj' thing- 
 >vhich the party had a right to recover, which was not claimed in 
 the petition for the recovery of the land, as for the extraordinary 
 expenses incurred in the recovery of the land, which could not 
 have been asserted in the first suit. {Walker v. Mitchell, 18 B. 
 Monroe's E. 541.) 
 
 Since the adoption of the Code of Practice, no suit in the name 
 of John Doe, the fictitious lessee, can be maintained for the 
 recovery ai mesne- profits, after a recovery in ejectment, though 
 the recovery may have been in his name under the former Code 
 of Proceeding. The suit is required to be in the name of the 
 real party interested in the recovery. {Masterson v. Hagan, 17 B, 
 Mon. E. 325.) 
 
 Under the present Code of Practice, a defendant may, in his 
 answer, in an action to recover the possession of land, set up and 
 rely upon an equitable defense, such as a claim to the land by 
 purchase, by executing contract ; in such case either party may 
 have the case transferred to the equity side of the docket ; if this 
 be not done the issue made on such defense is not to be dis- 
 regarded, but must be disposed of before the plaintiff can have 
 judgment ; and such issue may be disposed of according to the 
 principles which may be involved, either of law or equity. And 
 when legal as well as equitable matters of defense arise upon the 
 issues made in a case commenced at law, the legal should be tried 
 by a jury, and the court may submit matters of fact arising 
 upon the equitable issues, to a jury, when such issues have not 
 beerf transferred to the equity docket ; in such cases the finding 
 of the jury should be special, to enable the court to decide the 
 case. {Petty v. Malier, 15 B. Mon. E. 591.) 
 
 Under the former practice in Kentucky, it was held that, where 
 a plaintiff in ejectment shows a right to recover any part of the 
 land sued for, though not as much as he claims, he has a right to 
 recover to that extent, and a peremptory instruction to find for 
 defendant in snch a, case, was declared to be erroneous. {Dicki^ 
 spii's Heirs y. Talhofs Mxxcutors, 14 B. Mon. E. 60.) And under 
 
EJECTiVENT tN TEKKESSEE. 791 
 
 tlie liberal policy of the present Code of Practice of the state, 
 probably tlio same rule will obtain. 
 
 An action of ejectment having been decided against the plaintiffs, 
 the same plaintiffs, with others, apparently for their benefit, 
 instituted an action in equity against the same defendants, for the 
 same la,nd ; the court of appeals held, that the record of the action 
 of ejectment was competent evidence to show the issues involved 
 and tried in that action, and would aid tiie court to a correct con- 
 clusion as to a fact in issue in the equity action, and which was 
 decided against the plaintiffs in the action of ejectment. And it 
 was declared that the common-law principle, that one judgment 
 in an action of ejectment formed no har to another action of the 
 same sort, in favor of and against the same parties, and for the 
 same land, was dianged by an act of the legislature as early as 
 1825, making judgments in actions of ejectment, when the facts 
 enumerated in the act existed, a iar to a recovery in a subsequent 
 action. {Troutman v. Vernon, 1 Basil's R. 482. But vide Speed v. 
 Braxdell, 7 Monroe's E. 568.) 
 
 There are many decisions of the court under the old practice in 
 Kentucky, in respect to the action of ejectment, but, as none of 
 these decisions present , points peculiar to the policy of that state, 
 it may not be necessary to refer to them. 
 
 In the state of Tennessee the action for the recovery of real 
 property is called the action of ejectment ; and the action is com- 
 menced by summons and declaration, in which the name of the 
 real claimant is used as plaintiff, and the proper name of the 
 defendant is inserted. The action is brought against the actual 
 occupant, if any, and if no such occupant, then against any person 
 claiming an interest therein, or exercising acts of ownership at the 
 commencement of the suit." "When the suit is against a^tenant by 
 a party claiming adversely to the title of his landlord, the landlord 
 may appear and be made a defendant with or in place of the tenant. 
 A copy of the declaration must be left with the defendant at the 
 time the summons is served upon him. It is sufficient for the 
 plaintiff to allege in his declaration that he was possessed of 
 the premises sued for at the time specified, which should be after 
 his title accrued, and, being so possessed thereof, the defendant 
 afterward, on a day stated, entered thereon, and unlawfully with- 
 holds the'same, to the plaintiff's damage, naming the sum. The 
 plaintiff's declaration must also specify the quantity of his estate, 
 
792 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 apd the extent of tie interest, according to tlie truth, and descriho 
 the premises with convenient certainty, by metes and bounds, or 
 other appropriate description. The declaration may contain sev- 
 eral counts, and several parties may be named as plaintiffs jointly 
 in one count and separately in others, but not without the consent 
 of the party in person, or by a duly authorized agent, unless he be 
 a tenant in common with the party commencing the suit. And, 
 if the name of any person be used as a plaintiff contrary to this 
 provision, the suit may be dismissed at the cost of the plaintiff, 
 on motion of the defendant and proof of want of authority. (Code 
 of 1858, title 2, ch. 1, §§ 3230-3236.) 
 
 The pleadings in the action of ejectment may be amended so as 
 to conform to the truth and attain the ends of justice. And, if 
 the defendant conceive the plaintiff's declaration to be fatally 
 defective upon its face, he may demur as in other cases. The 
 defendant may plead that he is not guilty of unlawfully with- 
 holding the premises claimed by the plaintiff, and upon such plea 
 may avail himself of all legal defense. Such plea admits that the 
 defendant is in possession of the premises sued for, unless he states 
 distinctly upon the record the extent of his possession. (Code, 
 title 2, ch. 1, §§ 3237-3240.) 
 
 If the defendant fails to appear and defend the action within 
 the first three days of the return term, judgment by default may 
 be taken, and such judgment will be executed as in other cases. 
 (Code, title 2, ch. 1, "§ 3241.) 
 
 Upon the trial the plaintiff need not prove an actual entry on 
 or possession of the premises demanded, or receipt of any profits 
 thereof, nor any lease, entry or ouster, except that, if the action 
 is brought by one or more tenants in common, coparceners, or 
 joint owners against their co-teuants, the plaintiff must prove 
 actual ouster, or some other act of the defendant amounting to a 
 denial of -the plaintiff's right as co-tenant ; otherwise, it is suf- 
 .ficient for the plaintiff to show a right to the possession of the 
 premises claimed at' the commencement of the suit. (Code, title 2, 
 ch. 1, §§ 3242, 3243.) 
 
 Where there are more defendants than one, the jury may find 
 the defendants jointly or severally guilty of detaining all or any 
 distinct parcels of the premises, and the plaintiff may have judg- 
 ment against all of any defendant, according to the facts of tlie 
 case. The plaintiff may recover any specific part or share of the 
 
EJECTMENT IN TENNESSEE. 793 
 
 premises embraced in the declaration, though less than he claims. 
 The verdict may be for the plaintiffs, or such of them as appear 
 to have right to the possession of the premises, or any part thereof, 
 and against such of the defendants as were in possession thereof or 
 claimed title thereto at the commencement of the action. The 
 verdict may specify the extent and quality of the plaintiff's estate, 
 and the premises to whicli he is entitled, with reasonable certainty, 
 by metes and bounds, or other sufficient description, according to 
 the facts proved. And, if the right of the plaintiff expire after 
 the comniencement of the suit and before trial, the verdict mast 
 be according to the facts, and judgment will be entered for dam- 
 ages for the withholding of the premises by the defendant ; and, 
 as to the premises, the judgment will be, that the defendant go 
 thence without day. A general verdict in favor of the plaintiff, 
 without such specifications, entitles the plaintiff to the quantity 
 of interest or estate, and the premises, as set forth and described 
 in the declaration. (Code, title 2, ch. 1, §§ 32M-3249.) 
 
 The judgment for the plaintiff is, that he recover the possession 
 of the premises according to the verdict, or, if by default or on 
 demurrer, according to the description in the declaration. The 
 judgment is executed by a writ of possession issued to the sheriff, 
 and directing him to put the plaintiff in possession of the premises. 
 Any such judgment is conclusive upon the party against wliom it 
 is recovered, not under disability at the time of the recovery, and 
 all persons claiming under him by title accruing after the com- 
 mencement of the action. If the person against whom the recovery 
 is had is. under the disability of infancy, covertui'e, or unsoundness 
 of mind at the time of the recovery, the judgment is no bar to an 
 action commenced within three years after the removal of such 
 disability. (Code, title 2, ch. 1, §§ 3250-3253.) 
 
 The death of either party does not abate the action, but it may 
 be revived in favor of the heirs or devisees of the plaintiff, and 
 against the heirs and term-tenants of the defendant. If the heirs 
 are non-resident, the court may order publication to be made for 
 them, as in case of other non-resident defendants ; and, if they 
 fail to appear and defend, judgment by default may be taken, 
 subject to the rules and regulations of the Code touching judg- 
 ments against non-resident defendants. If any of the defendant's 
 heirs are infants, either resident or non-resident, without regular 
 guardian in the state, the court may appoint a guardian ad litem 
 100 
 
■794 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 for sueli infants after suit lias been, revived against tliem by service 
 of process or publication as aforesaid. And, should such non- 
 resident heirs appear, the court may, at any time before the trial, 
 upon satisfactory ground shown, change the guardians, and appoint 
 others to defend in behalf of such defendants. (Code, title 2, ch. 1, 
 §§ 3255-3258.) 
 
 Nothing in the chapter of the Code, respecting real actions, de- 
 prives the plaintiff in ejectment of his right to an action for mesne 
 profits, after verdict and judgment in his favor, nor the defendant 
 in such action of the right to file a bill in equity for the value 
 of his improvements; but those rights are subject to the general 
 provisions of the Code regulating actions. (Code, title 2, ch. 1, 
 § 3259.) 
 
 A tenant in possession in good faith, under a lease or license 
 from another, is not liable beyond the rent in arrear at the time 
 of suit brought for the recovery of the land, and that which may 
 afterward accrue during the continuance of his possession. And 
 persons holding possession in good faith under color of title are 
 entitled to have the value of their permanent improvements set 
 oflT against the rents and profits which the plaintiff may recover. 
 (Code, title 2, ch. 1, §§3260, 3261.) 
 
 Tlie rule of the common law, that the defendant in ejectment 
 must be shown to have been in possession of the premises claimed 
 at the time tlie action was commenced, has been so far changed by 
 the act of 1851-2, chapter 152, section 2, as that a person claiming 
 a legal title to the land, though not in possession thereof, against 
 another, having a legal title to the. same land, is subject to be sued 
 in ejectment upon the naked ground of his adverse claim. [Smith 
 V. Lee, 1 Coldwell's R. 549.) But the action of ejectment in Ten- 
 nessee is still held to be strictly a legal remedy. It looks alone 
 to the legal title, and cannot be maintained unless the plaintiff has 
 the legal estate in the premises ; nor can an equitable title be set 
 up in this action against the legal title. Thus, by the second sec- 
 tion of the act of 1852, chapter 152, the action of ejectment may 
 in some instances be maintained on a vacant possession ; but tho 
 whole extent of the alteration* of the law, as affected by that action 
 of the statute, is, that a person claiming a legal title to, or legcd 
 interest in, land, though not in possession thereof, is subject to be 
 sued in ejectment by the person having a legal title to the same 
 land, against whom the claim is made. The«tenns of the act are 
 
EJECTMENT IN TENNESSEE. 795 
 
 .that the action may be brought, among other cases, against a per- 
 son '^ claiming title" to the premises, ^^ or some interest therein." 
 This general language would, if literally understood, embrace an 
 equitable "title" or "interest," as well as legal. But such, it is 
 thought, could not have been the intention of the legislature. If 
 it should be held that a person setting up a claim under a mere 
 equitable title, though not in possession of disputed premises, was 
 subject to be sued in ejectment, it would necessarily follow that 
 he must be let in to all his equitable defenses. And it is declared 
 that this would be to convert the action of ejectment into a suit in 
 equity, and by consequence to take from the court of chancery this 
 well-established jurisdiction. Such a radical change, so incon- 
 sistent with the present organization of their judicial system in 
 Tennessee, cannot be supposed to have been contemplated by the 
 legislature. {Langford v. Love, 3 Sneed's R. 308.) 
 
 It is held that all persons who enter upon land pending an action 
 of ejectment for its recovery are subject to be removed by the final 
 process, in case the plaintiff recovers. (Walton v. Huff, 3 Sneed's 
 R. 82. But vide Blair v. PathUller, 5 Yerger's E. 230.) 
 
 It is held that the plaintiff in the action of ejectment in Tennes- 
 see may establish a title in himself; first, by a connected chain of 
 conveyances from the grantee ; or, secondly, by operation of the 
 statute of limitations of 1819; or, thirdly, long possession, which 
 in legal contemplation is an assurance of title. If he relies upon 
 the first, his chain of conveyances from the grantee must be com- 
 plete and unbroken ; if upon the second, he must show that the 
 land has been granted by the state of Tennessee or North Carolina 
 to some person, no matter who, as an indispensable prerequisite to 
 his claim under the statute ; if upon the third, he must also show 
 a grant, either in fact or by presumption of law. If he cannot in 
 the latter case produce the grant, or show that the land has in fact 
 been granted, then he may resort to the presumption of law arising 
 from a continued uninterrupted possession for a period of twenty 
 years. The doctrine of presumption of title rests upon the simple 
 fact of long continued use and enjoyment, which is regarded in 
 Jaw as evidence of title and seisin in fee, and supplies the absence 
 or loss of a grant. It requires no aid from color of title. The 
 possession \& prima facie evidence of title, and the law supposes 
 that it. had a legal origin. It rests alone upon a principle of pub- 
 lic policy to quiet the titles of those who can show no other title 
 
796 LAW OF EJECTilENT AND ADVERSE ENJOYMENT. 
 
 than long continued possession and use. {Cannon v. Phillips, 
 2 Sneed's E. 211.) 
 
 In an action of ejectment brought by the purchaser at execution 
 sale, claiming under tlie sheriff's deed, against the execution 
 debtor in possession, it is indispensable to authorize a recovery 
 •without a regular deraignraent of title from the grantor, that it 
 be shown that said execution debtor was in. the actual possession 
 of the land at the date of the levy and sale. The rule of law that 
 a purchaser at execution sale in an action of ejectment against 
 the execution debtor, who is shown to have been in possession at 
 the time of the levy and sale, need not go bej'ond the sheriffs deed, 
 and the record upon which it is founded embraces also the tenant 
 of such execution debtor, who may be the defendant in ejectment ; 
 but in such case privity in estate must be shown, or the plaintiff's 
 title must be regularly deduced from the grant. And in an action 
 of ejectment by a purchaser at sheriff's sale, against the execution 
 debtor :in possession at the time of such levy and sale, if it be 
 shown that the execution debtor, at the time of such levy, had only 
 an equitable estate in the land, such sale would communicate no 
 title to the pnrcliaser, notwithstanding the execution debtor may 
 have acquired the legal title in the interval between the levy and 
 sale. {Pratt v. Phillips, 1 Sneed's R. 543. And vide Ha/milton 
 V. Jack., lb. 81. Kimbrough v. Burton, 3 Humph. JX. 127. 
 Siglar v. Malone, lb. 16.) And where land was sold at execution 
 sale, and the execution debtor in possession leased the land to a 
 third person after sale, the lessee cannot set up the title of the 
 vendee as a defense against the action of the lessor. ( Wood v. 
 Turner, 8 Humph. R. 685. And vide Crutsinger v. Catron, 10 
 ib. 24.) , 
 
 Where the verdict in ejectment is for only part of the land 
 claimed, the same must specify and define such part by metes and 
 bounds, a reference to' other tracts, or natural or artificial objects, 
 so that the same can be identified. And if the evidence be not 
 sufficient to enable the jury to give such description, the cause 
 should be delayed, until, by proper surveys or additional proof, 
 such description could be given. {Brogan v. Savage, 5 Sneed's 
 E. 689. Loard v. Phillips, 4 ib. 566.) 
 
 Where the verdict in ejectment was for the plaintiff, but by the 
 record the judgment was only for costs, the supreme court will 
 render the proper judgment, and not reverse on that account. 
 
EJECTMENT IN NORTS CAROLINA. 797 
 
 {Ifolen V. Wihon, 5 Sneed's E, 332. And vide EaJcin v. Burger, 1 
 ib. 417.) And where the plaintiff in an action of ejectment 
 establishes his right to only a part of the premises claimed in the 
 declaration, and there is a verdict and judgment for the whole, 
 there is no error ; but the plaintiff must take possession of no 
 more than he has proved title to on the trial. {Paine v. Yorh, 
 10 Humph. E. 340.) 
 
 The plaintiff in an action of ejectment in Tennessee is not con- 
 cluded by a judgment in a former action against his tenant, 
 •whereby the defendant recovered the same land, and was put in 
 possession thereof, if the plaintiff was not a party of record in 
 such former action. By the act of 1852, chapter 152, section two, 
 the judgment in ejectment is conclusive only upon tlie party 
 against whom it is recovered, and against all persons claiming 
 from, through or under suph party, by title accruing after the 
 commencement of the action. And by the ierva^arty, in general, 
 is meant one having a right to control the proceedings, to make a 
 defense, to adduce and cross-examine witnesses, and to appeal 
 from the judgment. ' {Boles v. Smith, 5 Sneed's E. 105, 107.) 
 
 In the state of North Carolina, the usual action for the recov- 
 ery of real property is called the action of ejectment. The action 
 of ejectment must be commenced in the court of the county 
 wherein the cause of action is situated, and not elsewhere. (Eev. 
 Code, 1855, ch. 31, § 37.) The action is commenced by declara- 
 tion issued by the clerk of the court ; and upon the return thereof 
 the real plaintiff, his agent or attorney, at the return term, is 
 required to enter into bond, payable to the clerk of the court for 
 the use of the defendant, with good and suflBcient security to 
 prosecute the same with effect, or otherwise to pay all such costs 
 and damages as shall be awarded 'on failure thereof. And every 
 person, who, by leave of court, may become defendant in an action 
 of ejectment, is required on doing so, by liimself or his agent, to 
 execute a bond, with good and sufficient security, payable to the 
 fictitious lessee for the use of the plaintiff, to answer the action 
 and abide by the judgment which maybe rendered therein, in 
 the same manner and on the same conditions as bail are bound ; 
 and the obligors will be under the same rules and regulations, and 
 liable to the same judicial proceedings as to all costs and damages 
 which may be awarded against the defendant, as are principal 
 and bail in other civil actions. And whenever the plaintiff in 
 
t98 LAW OF EJECTHfEXr AKD ADVERSE ENJDTilENT. 
 
 ejectment shall fail to give bond for prosecuting his suit, the court 
 •will, on motion, dismiss the same ; and ■whenever any person may 
 he desirous of becoming defendant in a suit in ejectment, he must 
 give bond as before directed, or surrender himself in custody of 
 the sheriff, before be will be permitted to plead. If the lessor 
 of the plaintiff,' his agent or attorney, shall, at the return term of 
 the declaration in ejectment, file his affidavit that the tenant in 
 possession of the premises sued for, and to whom the notice of the 
 suit is directed in the process issued, entered into said premises as 
 his tenant, or as tenant of the person for whom such agent or attor- 
 ney deposes, that the said tenant's term therein was expired at the 
 commencement of the suit, and that he I'efuses to surrender the 
 possession of the premises to said lessors, or any one of them, then 
 tiie person in possession, or any other person applying to become 
 defendant, will not be entitled to plead to the suit, and the lessors 
 of the plaintiff will be entitled to judgment final against the casual 
 ejector at the said term, unless the person in possession, or other 
 person applying to be made defendant, shall make affidavit before 
 the court, in writing, that his term therein had not expired, and 
 also enter into bond with ample security, in such sum as the court 
 shall direct, conditioned that the defendant shall pay the lessor or 
 lessors all such costs and damages as shall be recovered in the suit ;. 
 and the jury in such cases, when issue may be joined, must find 
 in their verdict whether the defendant entered into possession of 
 the premises as the' tenant of the lessors, or of which of them, and 
 whether he refuses to surrender the premises after his term therein 
 had expired. And if the finding be in favor of the lessors of the 
 plaintiff, the jury must assess the damages to which they shall be 
 entitled, including tlie value of the occupation of the premises sued 
 for from the expiration of the tenant's term to the rendition of the 
 verdict, and damages for waste and trespass during the time of 
 such holding over; and the court will render judgment against the 
 defendant and his sureties upon their said bond, to be discharged 
 by the payment of the damages assessed and all costs; and judg- 
 ment upon the verdict will be a bar to an action for mesne profits, 
 or for the trespass by any of the lessors in the action. (Rev. Code, 
 ch. 31, §§41, 45-48.) 
 
 If after issue joined in any action of ejectment the defendant 
 shall voluntarily abandon the possession of the prenases sued for 
 and the lessor of the plaintiff shall enter therein, a plea by the 
 
E.TECTMSNT IN NORTB CAEOLINA. 'TOO 
 
 defendant of such entry and possession will not be received, unless 
 the same be verified by afBdavit, and accompanied with payment 
 into court of all the plaintiff's costs ; and such plea will be a waiver 
 of the plea already pleaded. And in all cases where the defendant 
 shall have given bond in pursuance of the last preceding provisions 
 of the statute, and he shall plead such entry and possession since 
 the last continuance, in manner aforesaid, and the same shall be 
 admitted by the plaintiff, or an issue joined be found for the 
 plaintiff, the jury must assess damages in the manner last before 
 stated, and the court will render judgment for the same against 
 the defendant and his sureties on their bond aforesaid. (Rev. Code, 
 ch; 31, § 49.) 
 
 When several persons are made defendants to an action of eject- 
 ment, and any one or more of them shall upon the trial be acquit- 
 ted by verdict, every person so acquitted will have and recover his 
 costs .of suit in like manner as if a verdict had been given against 
 the plaintiff and acquitted all the defendants, unless the judge 
 before whom the case is tried shall immediatelj' after the trial, in 
 open court, certify upon the record, under his hand, that there was 
 reasonable cause for mating such person a defendant. (Eev. Code, 
 ch. 31, §80.) 
 
 No action of ejectment in l^orth Carolina will abate by the death 
 of tlie defendant ; but the same may be revived by serving on his 
 heirs at law, or devisees, or the guardian, within two terras after 
 his decease, a copy of the declaration filed in the action, together 
 with a notice to the heirs or devisees, or their guardian, if they be 
 minors', to appear and defend the suit ; and after such service the 
 suit will stand revived, and may be proceeded on in the same man- 
 ner as if the defendant were living. Whenever any of the heirs 
 at law or devisees of such defendant, to whom the land in dispute 
 shall descend or be devised, shall be minors without guardian, the 
 court wherein the suit is pending must, upon application, appoint 
 a guardian to defend the suit on their behalf. And whenever any 
 of the heirs or devisees shall reside out of the state, the sheriff or 
 other officer to whom the decilaration and notice shall have been 
 issued must state the fact in his return : whereupon, an advertise- 
 ment of such notice must be made for six weeks in some news- 
 paper, and thereupon they will be deemed to have been duly 
 served with a declaration and notice, and the suit will proceed 
 accordingly. (Rev., Code, ch, 1, §§ 5, 6, 7.) 
 
800 ZAW OP EJECTMBNT AND ADVERSE EKJOTjilENT. 
 
 These are all the provisions of the statute in respect to the action 
 for the recovery of real property in the state of North Carolina. 
 Many principles have been settled by judicial construction, and the 
 principal points which have been decided by the courts will be noted. 
 
 In respect to the proper person to be made a defendant in the 
 action of ejectment in North Carolina, the general principle is 
 declared to be, that the action should be against the tenant in 
 possession of the premises in question at the time of the com- 
 mencement of the suit; that is to say, that in ejectment the 
 plaintiff is bound to prove the defendant in possession of the 
 premises which he seeks to recover. {Albertson v. Mending, 
 2 Murph. K. 2S3. Same Case, 1 Car. Law Eepos. 274.) But it 
 is held, nevertheless, that there are exceptions to the operation 
 of this general rule. The action of ejectment is said to be in 
 form "trespass." The judgment is, that the plaintiff "recover 
 his damages and costs." The order for a writ of possession is iio 
 part of the judgment. No one is compelled to become a defendant. 
 A copy of the declaration is served to give notice of the action, and 
 to enable the person, if he is concerned in the matter, either because 
 he is in possession, or because he claims title to the land, to apply 
 and have himself made defendant. The object of the fiction of a 
 " casual ejector " is to put it in the power of the court to refuse to 
 allow any ofle to be made a defendant unless he will enter into the 
 common or special rule. If no one applies to defend the action, 
 the plaintiff cannot take judgment by default against a casual 
 ejector unless he proves that the person upon whom a copy of the 
 declaration was served was in possession ; for without this no case 
 is constituted in court, and, if a judgment was rendered against 
 the casual ejector, a party would be turned out of possession with- 
 out notice or an opportunity to be heard simply by serving a copy 
 on a third party who is a stranger and has no concern with the 
 land. This branch of the rule is, therefore, founded upon a uni- 
 versal principle of justice, and admits of no exceptions. If any 
 one applies to defend the action, and is permitted to make himself 
 a party defendant for that purpose, the other branch of the rule is 
 called into action, and it is based upon particular principles, and, 
 consequentljr, admits of many exceptions. The principle of the 
 rule is to prevent surprise on the party who makes himself a 
 defendant, and the exceptions are, that where there is no surprise, 
 and the parties go to trial on the question of title, there being no 
 
EJUCTMENT IN NORTH CAROLINA. 801 
 
 difficulty as to the identity of the land, and both plaintiff and 
 defendant setting np claim to the whole of it, if the verdict goes 
 against the defendant, it is not for him to say that he was not in 
 possession at the time the action was commenced. It is sufficient, 
 so far as he is concerned, that he claimed title to the land, and 
 made himself a defendant for the purpose of asserting it. Accord- 
 ingly it has been held, " that, if the defendant claimed to be in 
 possession, or claimed the lands in controversy, and entered him- 
 self a defendant, with a view of maintaining such claim, that was 
 sufficient to enable the plaintiff to maintain the action." [Mor- 
 decai v. Oliver, 3 Hawkes' E. 479.) The ruling was approved by 
 the supreme court, and the case of Albertson v. Redding was 
 referred to as iixing tlie general rule ; but the case of a person 
 claiming title to the land, and making himself a defendant to 
 vindicate such claim, was held to be an exception. And, where a 
 person was served with a copy of the declaration after leaving the 
 premises, and entered into the common rule, and contested the 
 matter upon the validity of the title-deeds, there being no question 
 as to the identity of the land, it was held that he should not be 
 heard to say he was not in possession when the declaration was 
 served. {Atwell v. McLure, 4 Jones' L. E. S71. And vide 
 Gosham v. Brenon, 2 Dev. E. 174. ^Yise v. 'Wheeler, 6 Ired. E. 
 196. McDowell v. Love, 8 ib. 502. Carson v. Burnett, 1 Dev. 
 & Batt. E. 546.) 
 
 In England, at common law, on failure of the defendant to con- 
 fess, at the trial, lease, entry and ouster, according to the consent 
 rule, the lessor of the plaintiff was nonsuited, though he might 
 afterward sign judgment against the casual ejector; but, in the 
 practice in North Carolina, when the judgment is entered in the 
 same court wliere the pleadings are made up and the tiial takes 
 place, the lessor is not nonsuited, but has his judgment by default 
 at once against tlie casual ejector. {Doe v. Maddera, Busb. E. 52.) 
 
 In an action of ejectment by one tenant in common against 
 another, proof of a demand to be let into possession by the lessor 
 of the plaintiff subsequent to the demise laid in his declaration, 
 and a refusal by the defendant denying the plaintiff's right, is 
 held in North Carolina, as it is at common law, to be evidence 
 from which the jury may infer a previous ouster, or adverse pos- 
 session, at the time of the demise laid in the declaration. And it 
 was declared that, by entering into the general consent rule, a 
 101 
 
802 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 tenant in common admits the ouster of his companion. To avoid 
 such admission when there has been no actual ouster, he must 
 apply to the court for leave to enter into a special rule, requiring 
 liitn to confess lease and entry at the trial, but not ouster also ; 
 and this special rule will always be granted when the tenant does 
 not dispute his co-tenant's title; but, when he does dispute his com- 
 panion's title, he will be compelled to confess lease, entry and ouster 
 before he pleads. {^Hargrove v. Powell, 2 Dev. & Batt. E. 97.) 
 
 In the state of North Carolina, the courts hold that in the 
 action of ejectment the question is, has the lessor of the plaintiff 
 such a title as enabled him to make the lease set out in the declara- 
 tion ; and they declare it to be a well-established rule that the 
 lessor must show title at the date of the demise; for otherwise he 
 had no right to make the lease. So they say, it is a well-established 
 rule that the lessor must have the right of entry at the time the 
 action is commenced ; for otherwise he could not enter to make 
 the lease, and the fiction that he has made a lease is only, allow- 
 able wlien he could enter and make it, for the purpose of saving 
 the useless trouble and expense of actually doing so. {AdAerton 
 V. Melcher, 9 Ired. R. 349. Skipper v. Lennon, Busbee's E. 189.) 
 So also the courts of North Carolina declare it to be well 
 established that a joint demise by two is not supported by show- 
 ing title in one of the two at the date of the demise, the other 
 having no title at that time. (Iloyle v. Stowe, 2 Dev. II. 318. 
 Bhnner v. Carr, 11 Ired. R. 45.) And upon these principles it 
 ■was held, that, when a baron and feme joined in a demise in an 
 action of ejectment, dated before the coverture began, the plaintiff 
 could not recover. Pearson, C. J., delivering the opinion of the 
 court, said : " Let the demise be dated on the day of the mar- 
 rictge, and be in the names of the baron and feme ; a recovery can 
 then be effected without violating any rule of law ; and the pos- 
 session being regained, in the action of trespass, for the mesne 
 profits, the judgment in ejectment will be conclusive as to the 
 title, from the date of the marriage, and the only inconvenience 
 will be that, as to the time before the marriage, the question of 
 title will be open, and may be put in issue in that action. So the 
 only difference will be that, for the latter time, the title of the 
 feme will be proven in the action of trespass, instead of being 
 proven in the action of ejectment. {^Elliott v. Newhold, 6 Jones' 
 L. R. 911.) 
 
i EJECTMENT IN NORTH CAROLINA. 803 
 
 Where the demise in a declaration had expired before the trial in 
 the court below, the supreme court will allow an amendment 
 without costs, though the defect was not noticed below, and the 
 motion is first made in the supreme court. The power of the 
 court to amend such, defect is declared to be sustained in many 
 cases. The proceedings in an action of ejectment are, throughout, 
 fictitious, and the court will mould them to the attainment of 
 justice. The first case in which the question Avas decided was 
 decided in 1796. The court there decide, after very able argument 
 at the bar, that, where the demise in a declaration of ejectment is 
 about to expire before a trial can be had, the plaintiff will be 
 permitted to amend by extending the term. In declaring their 
 opinion, the court, after adverting to some distinctions as to the 
 time when such amendments will be allowed, say, since these 
 distinctions were supposed to exist, it is established that the term 
 will be extended at any time to meet the justice of the case. 
 {Young V. Irwin, 1 Hayw. R. 323.) And the same rule of 
 practice is declared to have been observed from that time to the 
 adoption of tlie present practice in the state. (Baxter v. Baxter, 
 3 Jones' L, R. 303.) But it is held that the court below has no 
 right to allow an amendment to a declaration in ejectment, by 
 adding a count on the demise of a person who died since the com- 
 mencement of the action, although he was alive at the date of 
 tlie demise in the proposed count. {Shijyper v. Lcnnon, Busb. R. 
 189. And vide Adderton v. Melchor, 9 Ired. R. 349.) 
 
 The rule has been laid down in the courts of Iforth Carolina, 
 that, where two parties claim title under the same person, neither 
 can deny the title of him under whom they both claim. But, in 
 all of the cases on the subject, it seems that it was admitted or 
 proved that the person under whom both parties derived title was 
 in possession, claiming the land in fee, or had a deed purporting to 
 convey it to him in fee. In all these cases the lessor of the plaintiff 
 was held not to be bound to show a grant from the state, nor to 
 prove that the title set up by the person under whom both parties 
 claimed was a good one. The rule in question was adopted as one, 
 provided in justice and convenience, to prevent the necessity of 
 such proof, and thereby to prevent the general rule, that in eject- 
 ment the plaintiff must recover upon the strength of his lessor's 
 title, from operating harshly, and, in many cases, unjustly. {Vide 
 Murphy V. Barnett, 1 Car. Law Repository, 100. Ives v. Sav)yer, 
 
804 LAW OFEJECTMENT AND ADVERSE ENJOYMENT. 
 
 4 Dev. & Batt. E. 51. Love v. Gates, lb. 3G3. Gilliam v. Bird, 
 8 Ired. E. 228. Johnson v. Watts, 1 Jones' L. E. 228.) But, -where 
 a person made a deed to another, conveying a hfe estate in an unoc- 
 cupied lot of land, and such life-tenant conveyed the premises in 
 fee simple, it was held that such purchaser is not precluded by the 
 rule of practice in ejectment from denj'ing the title of the vendor 
 beyond the life estate conveyed; and the heirs of such vendor can 
 only recover by showing either that their ancestor had a deed for 
 the land purporting to convey a fee, or that he was in possession 
 of the premises claiming a fee. {Doe v. Johnson, 5 Jones' L. E. 72.) 
 
 It is held that ejectment may be sustained, altiiongh it appears 
 that the lessor of the plaintiff and the defendant are botli living on 
 different parts of the tract of land in dispute, claiming adversely 
 to each other ; for there is nothing incongruous in the supposition 
 that the owner may be disseised of a parcel of his estate, or may 
 enter into a parcel and not the whole. Concurrent adverse actual 
 possessions are not easily conceived. "Where, after the entry of the 
 owner, he brings trespass against the tortious possessor for continu- 
 ing his possession, it is upon the idea that the entry was intended 
 as tlie resumption of the exclusive possession. But if the entry be 
 only into a parcel, as such, the possession acquired thereby is 
 necessarily restricted to that parcel ; and by bringing ejectment 
 instead of trespass the owner disavows the possession of tiie whole. 
 {Den V. Stephens, 1 Dev. & Batt. E. 5. And vide Den v. Ilarman, 
 4 Dev. E. 158.) 
 
 In the state of North Carolina, it is held that, where upon a con- 
 tract for the purchase of land the purchaser takes possession before 
 he obtains his deed, this possession will not be considered adverse 
 to the owner. "With respect to the contract to sell and the taking 
 I^ossession in consequence thereof by the permission of the owner, 
 if that be considered independent of any concomitant or subse- 
 quent cii'cumstances, it is declared that it can give no title what- 
 soever; the land could not pass, nor any estate in it, upon the 
 making of the contract and taking possession pursuant to it by 
 the vendor's consent. A deed properly executed and registered is 
 at least required to pass an estate of inheritance in this countr}' ; 
 and this to avoid the danger of claiming estates as passed from the 
 owner's verbal testimony, and of tvirning men out of their estates 
 and possessions by corrupt witnesses. "When a purchaser under a 
 contract takes possession, he takes it by consent of the owner, and 
 
EJECTMENT IN NORTH CAROLINA. 805 
 
 may continue it until he fails in payment, and then is liable at law 
 to be turned out ; he does not take a tortious possession and gain 
 a tortious fee. If he is not, strictly speaking, a tenant at will, his 
 possession is that of the owner, and not a distinct independent 
 possession opposed to it ; if he is ousted out of possession by a 
 stranger, he cannot regain it by an action in his own name, but 
 only, in an action wliicli sets up and afHrms the vendor's title. 
 Such possession of the purchaser is therefore not an adverse pos- 
 session to the vendor ; and, if by the act of limitations an adverse 
 possession is necessary to bar the plaintiff's title, a possession 
 taken under a contract of purchase simply will not answer the 
 purpose. ( Young v. Irwin, 2 Hayw. E. 9.) 
 
 Under the act of limitations, the English law books require the 
 plaintiff in ejectment to prove himself to have been in possession 
 within twenty years ; but, by the law of North Carolina, it is held 
 that he need not be in actual possession within seven years, the 
 period of the statute of limitations ; if he has a title-deed or grant, he 
 has a constructive possession by operation of law, which preserves 
 his right of entry until it be destroyed by an actual adverse pos- 
 session continued for seven years together; if he has never seen 
 his land, or if he has not entered upon it for fifty years, his title 
 may be good, if his adversjiry has not been in possession for seven 
 years continually, during the whole time, with a color of title. 
 {Young v. Irwin, 2 Hayw. E. 9. Yide Stnudwick v. Shaw, 1 ib. 5.) 
 
 It is held that, under the statute of North Carolina, if the action 
 of ejectment is brought for a moietj', a third may be recovered, or, 
 if for two moieties under different devises, two-thirds maj' be recov- 
 ered ; that is to say, if ejectment is brought for a certain portion 
 of a tract of land, a lesser fraction may be recovered. {Den v. 
 Evans, 2 Hayw. R. 222. Squires^. Jiiggs,.lh. 150.) And on the 
 several demise of one tenant in common the plaintiff in ejectment 
 may recover his term in the undivided share of that tenant ; but 
 the lessor of the plaintiff, must, at his peril, take out a writ of 
 possession only for the land to which he has title. {Godfrey v. 
 Cartwright, 4 Dev. R. 487. Bronson v. Paynter, 4 Dev. & Batt. 
 E. 393.) 
 
 Where a declaration in ejectment included the whole of a tract 
 of laudj and the evidence shows that, when the suit was brought, 
 the lessor of the plaintiff was in possession of all but a small parcel 
 '\% the possession of the defendant, to which the former failed to 
 
806 LAW OF BJECT31ENT AND ABVEESE ENJOYMENT. 
 
 show title, it was held by the supreme court that it was not neces- 
 sary for the defendant to have made a disclaimer in order to pre- 
 vent a recovery against him for the land outside of his possession. 
 The rule in ejectment is, that tlie plaintiff cannot recover without 
 showing a better title than the defendant to all the land to which 
 'the defendant is proved to have been in possession. {Hipp v. 
 Forester, 1 Jones' L. R. 599.) And where the only question in an. 
 action of ejectment was, whether there was an outstanding title 
 superior to that of the plaintiff, it was held not to be material for 
 the jury to consider whether the defendant's title connected with 
 it or not. {Clcgg v. Fields, 7 Jones' L. ,E. 37.) 
 
 If the plaintiff in ejectment shows title to any part of the land 
 contained in the demise which is in the defendant's possession, the 
 jury may render a general verdict in his favor. And where several 
 defendants are sued in ejectment, and one of them shows color of 
 title and seven years' possession, distinct from the possession of the 
 others, the defense of one can in no wise avail the others. {McKay 
 V. Glover, 7 Jones' L. R. 41.) 
 
 In Iforth Carolina the supreme court hold that in trespass for 
 mesne profits the record of the recovery in ejectment is conclusive 
 evidence of the title of the lessor of the plaintiff at the date of the 
 demise ; but that it is no evidence at all that the defendant's pos- 
 session commenced at that time or at any time before the com- 
 mencement of the action of ejectment ; and the fact of its having 
 commenced earlier than the last-mentioned time must be proved 
 aliunde. And it was further held that the record of the recovery 
 in ejectment is conclusive in the suit for mesne profits to establish 
 the fact of the defendant's possession at the commencement of the 
 ejectment ; and that it is also prima facie evidence of that posses- 
 sion being continued till the judgment and execution ; but the 
 defendant may, on the contrary, show that his possession termi- 
 nated earlier than that time. {Boston v. Jones, 2 Dev. & Batt. 
 L. R. 294.) 
 
 In the state of South Carolina the method of trying title to land 
 is by action of trespass, wherein the'real names of the plaintiff and 
 defendant are to be used, and not fictitious names ; and if the jury 
 shall find for the plaintiff, they arc also empowered in the same 
 verdict to award damages for mesne profits ; and the judgment 
 will be entered on such verdict as well for the damages as for the 
 recovery of the land ; and the plaintiff may have both a writ of 
 
EJECTMENT IN HOUTIT CAROLINA. 807 
 
 possession for his land and execution for his damages on the jndg- 
 nient. And the statute declares that all acts relating to " reject- 
 ment " shall be construed to have relation to trespass to try title, 
 where the title to land shall come in question. (5 Stat, at Large, 
 p. 170.) 
 
 In case of verdict or judgment against the plaintiff in the action 
 of trespass to trj title, or the plaintiff discontinue, or suffer non- 
 suit, or otherwise let fall the action, the judgment will be final and 
 conclusive as against the plaintiff and all persons claiming under 
 him. And all actions brought for lands must be prosecuted and 
 brought to trial with all convenient expedition, and not be delayed 
 but by special order or rule of court. (2 Stat, at Large, 584, 585.) 
 
 In all actions of trespass to try title the service of the writ will 
 be good in whatever district the defendant shall be sued, and the 
 action must be tried in the district in which the land lies. (6 Stat, 
 at Large, 211.) 
 
 Titles to freehold are only triable in the county courts in the 
 county where the land lies, and in all actions of trespass to try title 
 to land the plaintiff or his attorney must indorse on the original 
 and copy of the writ that the action is brought to try the titles, as 
 well as for damages ; and the action will be brought to'trial on the 
 merits, conformably to the principles of trials by ejectment under 
 the former law and practice of the courts. (7 Stat, at Large, 
 171, 276.) 
 
 In trespass to try title, when the defendant is in another district, 
 the plaintiff is not bound to have the defendant served in the dis- 
 trict where he resides, bnt may proceed in the usual course by 
 original, alias and pluries, until the defendant is served in the 
 district where the land lies. By an act of the legislature, passed 
 in 1823, above given (6 Stat. 211), the plaintiff in such a case might 
 serve the defendant in one county, and the service would be regarded 
 as good in the county where the land lies ; but it is held that, if 
 the plaintiff chooses to wait, and take the usual course of service, 
 he has a right to do so. {Renwick v. Eenwich, 9 Eich. E. 50.) 
 
 It is held that, in trespass to try title, the plaintiff, in proving 
 title, need not go beyond a source from which both the defendant 
 and himself claimed to derive title. {Martin t. Rawlett, 5 Rich. 
 E. 641. Hill Y. Robertson, 1 Strob. Law E. 1.) And where, the 
 plaintiff claimed title as a purchaser. of M.'s interest at sheriff^s 
 sale, the defendant being tenant of G:, who claimed as mortgagee 
 
808 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of M., and also as purchaser of M.'s interest at sheriff's sale, it was 
 held that the plaintiff was not bound to prove title beyond M. It 
 seems, however, that in such ease tlie defendant was not estopped 
 from showing that G. held by a better title than the one derived 
 from M. {Martin v. Eawlett, 5 Eich. E. 541.) 
 
 "Where the sheriff levies and sells land as the property of a party 
 who has, in fact, no interest in the land, but only lives on it with 
 the real owner, a joint action of trespass to try titles will not lie 
 by the purchaser against the party as whose property the land was 
 sold, and the real owner. The sheriff's deed, being no estoppel as 
 against the real owner, does not, in a joint action, operate as an 
 estoppel against the party as whose property the land was sold. 
 {Bruskett v. HolsonbacTc, 2 Eich. E. 624.) 
 
 Where, in an action of trespass to try title, a verdict was rendei'ed 
 for the defendant, and the possession was immediately abandoned 
 by him, and, before two years had expired, the plaintiff, finding the 
 land unoccupied, took possession of it, it was held that tlie plaintiff 
 was not barred of her title because she brought no second action 
 within two years after the first was determined. {Henderson v. 
 Kenner, 1 Eich. E. 474.) 
 
 It is held in South Carolina, that a party claiming title to land 
 by adverse possession must show clearly, not only that his posses- 
 sion was adverse, but that it was for the full statutory period. If 
 there be doubt on either of these points, the possessory claim must 
 yield to the legal title. {Abel v. Hutto, 8 Eich. E. 42. And vide 
 Ganiy v. Flatt, 2 McCord's L. E. 262. Rochell v. Holmes, 2 Bay's 
 E. 487.)' 
 
 A plaintiff, in trespass to try title, claimed under a junior grant, 
 and by adverse possession of their tenant. The possession had not 
 continued for the full stattitory period when the writ was issued : 
 it was held that the possession, after the issuing of the writ, could 
 not b? united with that which existed before, so as to perfect 
 plaintiff's title, and entitle them to recover. {Hood v. Palmer, 
 7 Eich. E. 138.) 
 
 When the statutory period is interposed to defeat a title to land 
 put in action, it would be vain for a defendant to content himself 
 with showing no more than that his act of adverse possession began 
 at a point of time prior to the action more than five, seven or ten 
 years, as the case might be. He must show, moreover, that such 
 adverse possession has been continued, consecutive, nnbroken, for 
 
EJECTMENT IN SOVTR CAROLINA. ■ 809 
 
 the requisite space of time, a period reckoned by years. It is 
 something done by the defendant, not merely tliat -which the 
 plaintiff has left undone in his action, not merely' the plaintiff's 
 torpidity, that is to be considered. [Bill v. Sanders, 6 Eich; E. 62.) 
 There can be no constructive adverse possession of land against the 
 owner, when there has been no actual possession, which he could 
 ti'eat as a trespass and bring an action for. [Steed-man v. Hilliard, 
 3 Eich. E. 101.) 
 
 Under the statute of limitations of 1712 and 1824 (P. L. 101, 
 a, a, 1824, page 24), the settled construction is, that the right or 
 title to lands, and the consequent remedy by action for an injury 
 to the same, by withholding the possession, can only' be barred by 
 an z.cius\ pedis possessio for the time fixed by the acts. The reason 
 of this seems to be, that, until there is an actual permanent posses- 
 sion by some claimant, the party to whom th.&.right or title to the 
 land accrued cannot prosecute it. In an early case Judge Smith, 
 who was one of the oldest as well as the ablest of the land lawyers 
 of South Carolina, delivered the opinion of the constitutional court, 
 settling irreversibly the principle that an actual possession of a part 
 of a tract of land by color of title, for more than five years, under 
 the act of 1712, would bar the right of a cl'aimant to prosecute the 
 same. [Reid v. Eiforts, 1 Nott & McCord's E. 374, note. And 
 videWilliams v. McGee, 1 Const. E. 85.) That decision seems to 
 have been followed ever since. The intent of the statute being to 
 quiet estates, by making a possession under an imperfect title 
 equivalent to a legal one, it has hence very properly been held 
 that a repetition of trespasses, by cutting down and using timber 
 for the whole time fixed by the statute, would not bar a right or 
 title to lands. The acts done were fugitive, and did not amount 
 to any certain claim of estate, and hence were neither within the 
 words or intent of the legislature. [.Bailey v, Irley, 2 Nott & Mc- 
 Cord's E. 343. White ads. Jieid, lb. 534.) 
 
 The cases clearly show that the operation of the act of limitations 
 depends upon an actual possession of the land in dispute, and not 
 upon a mere non-claim by the plaintiff. They also show that the 
 plaintiff's right of action fpr the locus in quo must have existed 
 against some one for more than the time allowed by law, or he can- 
 not be barred. If,, therefore, any one, before the defendant, had 
 an actual possession for more than Jive or ten years (as the case 
 xaaj be), it would bar the plaintiff as well as if it had been' in the 
 102 
 
810 LAW OP EJECTMENT AND ADVERSE ENJOYMENT. 
 
 defendant. But, unconnected possession, each being for a shorter 
 time than that limited by tlie statutes, but when joined together 
 making ^we or ten years, cannot be united so as to bar the plaintiff. 
 (King v. Smith, Eice's R. 10. And vide Turnipseed v. Busley, 
 
 I McCord's R. 279.) 
 
 It has been held by the court of appeals of South Carolina, that 
 M-here a judgment for tlie defendant in a former action between 
 the same parties is relied upon, under the act of 1744 (3 Stat. 612), 
 as a bar to a second action of trespass to try title to land, com- 
 menced more than two years after the first was dropped, it must 
 appear with such certainty as the common law requires in cases 
 of estoppel (that is, " certainty to every intent"), that both actions 
 were for the same land. Accordingly, where the plaintiffs sued 
 out their writ in trespass to try title for "a certain plantation or 
 tract of land of the plaintiffs, situate on the waters of Santee 
 river," and then, without proceeding further, let fall their action, 
 and judgment was enteredfor the defendant, it was held that this , 
 judgment was no bar to a second action, brought more than two 
 years afterward between the same parties and in the same district, 
 for a " certain plantation and close of the plaintiffs," described 
 generally as lying within the district, because it did not appear to 
 the court that the two actions were for the same land. And it 
 was held in the same case, that trespass to ti-y title will lie against 
 the landlord, tliough he never was in possession, the entry being by 
 his tenant. (Binder v. Bcnhow, 12 Rich. R. 24. Vide Brough- 
 ton V. Broughton, 4 ib. 492. Henderson v. Kenner, 1 ib. 474.) 
 And where tliere is a recovery against the defendant in an action 
 of trespass to try. title, and he subsequently acquires title by taking 
 out a grant and re-enters, the recovery in the first is no estoppel 
 in a second action for the same land. [The State Bank v. Bridges, 
 
 II Rich. R. 87. Tide Shettlesworth v. Hughey, 9 ib. 387.) 
 
 In an action of trespass to try title, where the verdict of the jury 
 is against the evidence upon a question of location, a new trial will 
 be granted ; and the court will more readily grant a new trial upon 
 a question of location than upon most other questions of fact. {The 
 State BanTc v. Balro, 11 Rich. R. 59T. And vide Ahel v. Hutto, 
 8 ib. 42. Felder v. Benett, 2 McMullen's Law R. 44-47.) 
 
 In trespass, to try title, a survey is not always necessary, in order 
 to identify the land : other evidence may be resorted to for that 
 purpose. And in such an action, a verdict for the land on which 
 
EJECTMENT IN SOUTH CAROLINA. 811 
 
 the defendant lives, is held to be sufficiently definite. {Manning 
 V. Dove, 10 Eich. E. 395. And vide Broughton v. Broughton, 
 4 ib. 492.) But- it has been held that on a question of location, 
 it is inadmissible to prove by the witness who drew the deed, that 
 it was his understanding, froin what passed between the grantor 
 and the grantee at the time the dee(^ was drawn, that a certain 
 piece of land was not intended to be conveyed. {Senterfit v. Ecy- 
 nolds, 3 Eich. E. 128.) 
 
 Some forty years ago a very important case came into the 
 supreme court of the United States, on error to the circuit court 
 of the district of South Carolina, in which some interesting and 
 familiar principles were asserted, not peculiar to South Carolina, 
 but applicable to a certain class of cases in most of the states, and 
 which may as well be stated in this place. An action of trespass 
 to try titles was brought in the circuit court of South Carolina to 
 recover six hundred acres of land situated on the Savannah river 
 in that state ; there was a judgment entered for the plaintiff, and 
 the defendant took the case to the supreme court of the United 
 States on writ of error.- The latter court laid down, among others, 
 the following propositions ': 
 
 It is an undoubted principle of law, fully recognized by the 
 court, that a tenant cannot dispute the title of bis landlord, either 
 by setting up a title in himself or a third person during- the exist- 
 ence of the lease or tenancy. The principle of estoppel applies to 
 the relation between them, and operates with full force to prevent 
 the tenant from violating that contract by which he claimed and 
 held possession. He cannot change the character of the tenure 
 by his own act merely, so as to enable himself to hold against his 
 landlord, who reposes under the security of the tenancy, believing 
 the possession of the tenant to be his own, held under his title, and 
 ready to be surrendered by its temnination, by the lapse of time or 
 demand of possession. The same principle applies to mortgagor 
 and mortgagee, trustee and cestui que trust, and generally' to all 
 cases where one man obtains possession of real estate belonging to 
 another by a recognition of his title. 
 
 > In no instance has the principle of law which protects the rela- 
 tion between landlord and tenant been carried so far as in a case 
 •which presents a disclaimer by a tenant with the knowledge of his 
 landlord, and an unbroken possession afterward for such a length 
 of time that the act of limitations has run out four times before 
 
812 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 he lias done any act to assert his right to the land. "When a tenant 
 disclaims to hold under his lease, he becomes a trespasser, and his 
 possession is adverse, and as open to the action of his landlord as 
 a possession acquired originally by wi'ong. The act is conclusive 
 on the tenant. He cannot revoke his disclaimer and adverse claim 
 BO as to protect himself during the unexpired time of the lease. 
 He is a trespasser on him who has the legal title. The relation 
 of landlord and tenant is dissolved, and each party is to stand 
 upon his right. If the tenant disclaims the tenure, claims the fee 
 adversely in right of a third person or in his own right, or attorns 
 to another, his possession then becomes a tortious one by the for- 
 feiture of his right, and the landlord's right of entry is complete, 
 and he may sue at any time within the period of limitation ; but 
 he must lay his demise of a day subsequent to the termination of 
 the tenancy, for before that he had no right of entry. By bringing 
 his ejectment he disclaims the tenancy and goes for the forfeiture. 
 It will not be permitted to the landlord to thus admit that there 
 is no tenure subsisting between him and the tenant which can pro- 
 tect his possession from this adversary suit-, and at the same time 
 recover on the ground of there being a tenure so strong as that he 
 cannot set up his adversary possession. 
 
 A mortgagee, or direct purchaser from a tenant, or one who 
 buys his right at a sheriff's sale, assumes his relation to the land- 
 lord, with all its legal consequences, and is as such estopped from 
 denying his tenancy. 
 
 If no length of time would protect a possession originally 
 acquired under a lease, it would be productive of evils truly 
 alarming, and the court must be convinced beyond a doubt that 
 the law is so settled before they would give their sanction to 
 such a doctrine ; and this is held not to be the case upon the 
 authorities. 
 
 The relation between tenants in common is in principle very 
 similar to that between lessor and lessee. The possession of one 
 is the possession of the other, while even the tenure is acknowl- 
 edged. But if one ousts the other, or denies the tenure, and 
 receives the rents and profits to his exclusive use, his possession 
 becomes adverse, and the act of limitations begins to run ; so of a 
 trustee, so of a mortgagee. 
 
 In relation to the limitations of actions for the recovery of real 
 property, the court thought proper to say, that the statute ought 
 
EJECTMENT IN GEORGIA. 813 
 
 to receive such a construction as will effectuate the beneficent 
 objects which it intended to accomplish, the security of titles and 
 the quieting of possessions ; and the construction given to it in the 
 case under review was thought to be conformable to its true spirit 
 and intention, without impairing any principle theretofore estab- 
 lished. The authorities upon the points discussed were examined 
 at great length by Mr. Justice Baldwin, who delivered the opinion 
 of the court ; and the rules laid down were considered to be in 
 accordance therewith ; and especially that they were not adverse 
 to the principles of any case adjudged by the supreme court of 
 South Carolina. ( Willison v. Waikins, 3 Peters' E. 43. And vide 
 Bell V. Morrison, 1 ib. 360, Wilson v. Weatherly, 1 ISTott & Mc- 
 Cord's E. 373.) 
 
 CHAPTEE XLV. 
 
 THE ACTION FOE THE EEOOVEET OF EEAL PEOPEETY IN THE SEVEEAL 
 STATES — THE PEACTICE IN GEOEGIA, FLOEIDA, ALABAMA, MISSISSIPPI, 
 LOUISIANA, AEKANSAS AND TEXAS. 
 
 In the state of Georgia it is declared by statute that all dis- 
 tinctions of actions into real, personal and mixed are abolished, 
 although the action for the recovery of real property is usually 
 called the action of ejectment. And all suits respecting the title 
 to lands must be tried in the superior court of the county wherein 
 the land lies. (Rev. Code, 1866, §§ 3187, 3326.) 
 
 In all cases where any person residing in one county, whose 
 plantation or land extends over the line into an adjoining county, 
 and there is no one upon whom service in an action of ejectment 
 can be legally perfected in the county where such land may lie, it 
 is made lawful for the clerk of the superior court of the county 
 wherein such land may lie to issue process in behalf of the 
 plaintiff against the defendant, which process must be directed 
 to the sheriff of the county wherein such land may lie, and siicli 
 sheriff must serve the same, and such service is made good and 
 valid. It is further declared by statute, that the plaintiff in eject- 
 ment may add a count in his writ or declaration, and submit the 
 evidence to the jury, and recover by way of damages all such 
 
814: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 Bun^s of money to which lie may he entitled hy way of mesne 
 profits, together with the premises in dispute. The count for 
 mesne profits may be in the name of the nominal or real plaintiff 
 •in the action; and no plaintiff in ejectment can have and main- 
 tain a separate action in his behalf for the recovery of mesne 
 profits which may have accrued to him from the premises in 
 dispute. (Rev. Code, §§ 3279-3281.) 
 
 Any joint-tenant, tenant in common, or other person having an 
 interest in lands or tenements, may have and maintain an action 
 of ejectment or trespass for the recovery of such lands or tene- 
 ments, or for any injurj' thereto, without joining witli him any 
 other person as plaintiff; but the judgment in such case will not 
 affect the rights of those interested in such lands or tenements 
 who are not parties to the suit. And when several persons claim 
 several parcels of land under distinct titles, and do not sustain 
 to each other the relation of landlord and tenant, a joint action 
 of ejectment cannot be maintained against them, nor can a joint 
 and several recovery be had in such action, either for the premises 
 or mesne profits. (Rev. Code, §§ 3282, 3283.) 
 
 The form of a declaration for the recovery of real estate and 
 mesne profits may be as follows, to wit : 
 
 A- 
 
 Georgia, , ~ , „ . „ „ . , 
 
 !■ To the Superior Court of said county. 
 county. ' 
 
 The petition of A B showeth that C D, of said county, is in pos- 
 session of a certain tract of land in said county (here describe the 
 land), to which your petitioner claims title ; that the said C D has 
 received the profits of said land since the day of , 18 , of 
 the yearly value of dollars, and refuses to deliver said land to 
 your petitioner, or to pay him the profits thereof; wherefore your 
 petitioner prays process may issue requiring the said C D to be and 
 appear at the next superior court to be held in and for said county, 
 to answer your petitioner's complaint. (Rev. Code, § 3313.) 
 
 A plaintiff in ejectment may, in all cases, mate the true claim- 
 ant- defendant, by serving a copy of the pending action upon him, 
 and the person so notified will be bound by the judgment. A de- 
 fendant in ejectment may, at the first term, come in and disclaim 
 any claim of title or right of possession ; and after such disclaimer 
 is filed such defendant will not be liable for any future cost. A 
 
EJECTMENT IN GEORGIA. 815 
 
 previous warrantee of the title to the laud in dispute may be a co- 
 defendant in an action of ejectment, provided he would be answer- 
 able in damages in case of eviction. The consent rule in ejectment 
 will always be considered as filed, and admits lease, entry and 
 ouster ; and the fictitious forms in pleading in ejectment are made 
 sufficient. (Rev. Code, §§ 3284, 3285, 3288, 3289.) 
 
 A plaintiff in ejectment may recover the premises in dispute 
 upon his prior possession alone, against any one who subsequently 
 acquires possession of the land by mere entry, and without any law- 
 ful right whatever; and a judgment in ejectment is made conclu- 
 sive as to the title between the parties thereto, unless the jury find 
 Ar the plaintiff less than the fee. (Eev. Code, §§3286, 3290.) 
 
 On a second suit between the same parties, involving titles to 
 land, the jury will have the right to determine whether the action 
 has any real merit; and, if none, they will have the power' to de- 
 termine what amount of damage the defendant shall have sustained 
 by and on account of the last-mentioned suit, and must return the 
 same in their verdict, on which judgment maj' be rendered, and 
 fieri facias issued, as in other cases involving moneys. (Rev. Code, 
 § 3287.) 
 
 The foregoing seem to be all the essential provisions of the statute 
 in respect to actions for the recovery of real property in the state 
 of Georgia. Such actions are brought to trial, and writs of error 
 may be taken therein, as in personal actions. The most of the 
 principles governing the action of ejectment at common law are 
 applicable to the action in G-eorgia. 
 
 The action of trespass in ejectment by the constitution of Georgia 
 must be tried in tlie county where the land lies. The right to issue 
 process and bring the defendant before the court is incident to the 
 jurisdiction. {Dickinson v. Allison, 10 Ga. R. 558.) If there be 
 a tenant in possession of the land in dispute, service of the declara- 
 tion may be made on him. By the practice at common law, the 
 service of the declaration must be personal on the tenant and on 
 the land ; but there are exceptions to the rule. Personal service 
 is not required in Georgia. Where the premises are vacated and 
 wholly deserted, and the plaintiff's lessor Jcnew where the tenant 
 lived, the ancient mode of effecting service in cases where the 
 premises wore vacated will not do, and a judgment obtained on 
 such service would be set aside. If the plaintiff's lessor knew 
 V where the tenant lived, of course he must be served with the decla- 
 
816 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 ration. It is, therefore, held that where the land in dispute lies 
 in one county, and the defendant resides in another, the declaration 
 may be served on such defendant in the county where he resides. 
 {Doe V. Eoe, 22 Ga. R. 672.) 
 
 There can be no special pleading in ejectment in Georgia, for 
 the consent rule which admits lease, entry and ouster, compels the 
 defendant to plead only " not guilty," or the statute of limitations. 
 The general issue in ejectment denies the defendant's possession, 
 as well as the plaintiff's title; and the consent rule in ejectment 
 is always considered as filed, and admits on the trial lease, entry 
 and ouster, and it is, therefore, not necessary for the plaintiif to 
 ]irove them. The fictitious form of pleading in ejectment is held' 
 to be sufScient. {HilUard v. Doe, 7 Ga. E. 172. " Doe v. Butler, 
 6 ib. 88.) 
 
 It is held in the state of Georgia, in accordance with the com- 
 mon-law rule, that a plaintiff in ejectment must recover on the 
 strength of his own title, and not on the weakness of the defend- 
 ant's title. {Stanford v. Mangin, 30 Ga. R. 355. And vide 
 , BrooTiing v. Dearmond, 27 ib. 58.) A plaintiff in ejectment is not 
 entitled to recover where one of the lessors has conveyed by deed 
 his whole legal and equitable right to another lessor whose right 
 to recover has been barred by a former recovery in the statutory 
 form of action against the same defendant for the same lot of land, 
 and the demises from these two being all the title exhibited by the 
 plaintiff. {Doe v. Roe, 30 Ga. E. 632.) And to defeat the plaint- 
 iff in ejectment, the defendant may show a paramount title out- 
 standing in another, without connecting his possession with that 
 title. {Sutton v. McLeod, 29/Ga. R. 589.) No recovery can he 
 had in ejectment, when the' lease under which it is sought has 
 expired before the trial, unless the same be amended. {Itoe v. Doe. 
 30 Ga. R. 608.) And in ejectment there can be no recovery of 
 the premises upon a demise from a dead lessor, but there may be 
 a recovery of costs on such a demise, if the lessor be living at the 
 commencement of the suit, though dead at the time of the trial. 
 {Doe V. Lewis, 29 Ga. R. 45.) 
 
 It is held in Georgia that marriage gives to the husband such a 
 title to the wife's land, that he may, after her death, although he 
 has never reduced it into his possession, sue for it and recover it, 
 without having administered on her estate. {Presoott v. Jones, 
 29 Ga. R. 58.) And proof of prior possession of land for more 
 
EJECTMENT IN OEOROIA. 817 
 
 than seven years is sufficient to authorize a recovery by a plaintiff 
 in ejectment against a mere wrong-doer. {Buclcner v. ChamMiss, 
 30 Ga. E. 652. Johnson v. Lancaster, 5 ib. 39.) So, also, if a 
 defendant in ejectment enter on land sued for, under the lessor of 
 the plaintiff, whether by purchase, gift or lease, it is held, in con- 
 formity with the general doctrine, that he cannot dispute the title 
 under which he entered; and if the defendant, after entering into 
 possession under the lessor of the plaintiff, sets up a defense against 
 him to a suit for the recovery of the land, hostile to the title under 
 which he entered, he cannot claim to be a tenaqt at will, and enti- 
 tled to notice to quit, before suit can be brought. And it was 
 decided in the sa:me case, that if a defendant in ejectment entered 
 into the possession of the premises sued for, under a contract of any 
 sort for a title, the statute of limitations could not begin to run in 
 his favor until he repudiated the contract, and claimed to hold in 
 defiance of the plaintiff's title, and the plaintiff had knowledge of 
 such adverse holding. ( Williams v. Cash, 27 Ga. E. 507. And 
 vide Russell v. Slaton, 25 ib. 198. Oliver v. Williams, Ib. 217.) 
 
 "Where a party having the legal title to a lot of land conveyed 
 it when another party was in the adverse possession thereof, it was 
 held that, although the deed was void, still tiie legal title to the 
 land was in the grantor, and that he might maintain an action of 
 ejectment upon that legal title to recover the possession of the 
 land. {Doe v. lioe, 37 Ga. E. 5.) 
 
 Though the attorney prosecuting a case may have no authority 
 to use the name of a party as lessor of the plaintiff in ejectment, 
 the court should not for this cause dismiss the action, unless it 
 appear also that the client has no authority to use the name ; and, 
 to authorize a plaintiff in ejectment to use the name of another, 
 he must show some connection between his title and that of the 
 person in whose name he sues. It is held that a plaintiff in eject- 
 ment should be permitted to use the name of another when he 
 makes it clearly appear to the court that sucii use is necessary for 
 the assertion of his rights. And the name of a party may be used 
 as lessor in ejectment upon proper indemnity being given, not only 
 without but against his consent, when it appears to the court that 
 such use is important to the rights of a party. (Doe v. Jioe, 36 
 Ga. E. 432. Einsey. v. Sinshaugh, 17 ib. 540. Couch v. Turner, 
 Ib. 489. Adams v. McDonald, 29 ib. 571. Fain v. Garthright, 
 5 ib. 6.) 
 
 103 
 
818 ZAW OF EJECTMENT AXD ABVERSB ENJOYMENT. 
 
 A pai'ty wlio claims to be the landlord of a defendant in eject- 
 ment cannot, as a matter of right and against the plaintiff's objec- 
 tions, be made a co-defendant when it appears to the court that 
 all the title he sets up was acquired subsequently to the bringing 
 of the action. The refusal of the court to permit such a party to 
 be made a co-defendant is no ground for a new trial, especially 
 "when it appears tliat he had on the trial all tlie advantages of his 
 title in favor of the possession of his tenant in whose name he was 
 permitted to defend ; and it appears, from the whole case, tliat 
 justice has been done. {Roe v. Doe, 36 Ga. R. 611. Riohardson 
 T. Harvey, 37 ib. 224.) 
 
 It has been held that, the plaintiffs having recovered one-half of 
 the premises in dispute, and there being newly discovered evidence 
 showing that they were not-entitled to that much, a new trial ought 
 to have been granted. {Roe v. Doe, 34 Ga. R. 492.) 
 
 Under the practice in Georgia, the plaintiff in ejectment may 
 amend by striking out two of tliree defendants and proceed 
 against the third. And, as there cannot be a joint recovery for 
 mesne profits against defendants in ejectment who hold severally 
 and not jointly, and as noesne profits cannot be recovered in this 
 state in a separate action in order to give force and effect to the 
 statute, it has been questioned whether it would not be proper 
 to hold that the damages might be apportioned out against the 
 several defendants according to their respective possessions. {Cun- 
 ningham V. Bradley, 26 Ga. R. 238.) 
 
 When the proof shows tliat tlie defendant in an action of eject- 
 ment was in possession of the lot of land in suit the year before 
 the suit was brought, the court held tliis to be sufficient evidence 
 of possession of the premises to authorize a recovery against him. 
 {Doe V. Roe, 30 Ga. E. 553.) 
 
 The titles of the..different lessors of the plaintiff in ejectment 
 are different causes of action, and, for purposes of defense, the 
 action, as to each one of them, is to be considered as commenced 
 wlien that one is introduced into the declaration, whether it bo 
 introduced at the beginning or as an amendment afterward. {Roe 
 V. Doe, 30 Ga. R. 873.) 
 
 As before intimated, when the lessor of the plaintiff in eject- 
 ment is dead at the time the action is brought, there can be no 
 recovery upon his demise ; when he dies intermediate the bring- 
 ing and trial of the suit, costs only can be recovered. The civil 
 
JEJECT3IE1XT IN QEOROIA. 819 
 
 law will presume a person to be living at a hundred years of age ; 
 and tlie common law does not stop much short of this. {Roe v. 
 Doe, 24 Ga. E. 494. And vide Benson v. OUve, 2 Strange's E. 920.) 
 
 Where tliere are two deeds of the same lands, tlie younger duly 
 recorded, the older not, possession by the person claiming under 
 the older deed is held to be a fact admissible as evidence against 
 the person claiming under the younger deed, on the question, 
 whether the latter person did not have notice of the older deed 
 at the time wlien he took the younger deed. Tliis is in harmony 
 with the general rule, that possession of land is, to all, constructive 
 notice of the title by whicli the pei-son in possession holds the 
 land. {Wyatt v. Ela7n, 23 Ga. E. 201. Hill on Trustees, 312.) 
 
 Tlie deed of a person to land, M'hen there is adverse possession 
 held by another, being void under the 32 Henry YIII, does not 
 preclude tlie grantee from maintaining an action of ejectment in 
 the name of the grantor to recover possession of the premises. 
 {Thompson v. Hichards, 19 Ga. E. 594.) 
 
 "Where the plaintiff and defendant in ejectment both deduce 
 title from a common grantor, it is held to be needless to go back 
 of him to make out the title. {Miller v. Swils, 19 Ga. E. 331, 
 Woods V. MoGuire's Children, 17 ib. 303.) 
 
 Tlie general rule is, that the lessor in ejectment ought to have a 
 subsisting title or interest in the premises ; but under special cir- 
 cumstances the court will permit the demises to be retained. It 
 frequently happens that, owing to some defects in the chain of 
 title, the plaintiif is unable to recover except by laying a demise 
 in the name of some previous party. And this he should be per- 
 mitted to do whenever it shall clearly appear that he has a bona 
 fide claim or pretension to the premises. Otherwise, it would be 
 both unreasonable and unjust to allow the tenant to be undis- 
 turbed. But one man should not be allowed to rob another of his 
 land by using the title of a third person with whom he has no con- 
 nection. And, therefore, it must clearly appear that he has a lona 
 fide claim or pretension to the premises in dispute, or he will not 
 be permitted to recover under a demise from a third person. 
 {Couch V. Turner, 17 Ga. E. 489.) And where, in an action of 
 ejectment, a demise is laid in the name of several lessors, and 
 upon the trial title is proven in one of them only, and the defend- 
 ant shows, by the counsel who appears for the plaintiff, that he 
 represents another lessor between whom and the lessor in whom 
 
820 LAW OF EJECT3IENT AND ADVERSE ENJOYMENT. 
 
 title is proven no connection is made out, tlie counsel at the same 
 time stating that he does not know the latter, and has no instruc- 
 tions from him, the court held that this was not a sufficient ground 
 for the dismissal of the action. {Kinsey v. The Lessor of Sins- 
 laugh, 17 Ga. E. 5iO.) 
 
 Eut if the lessor of the plaintiff be dead at the date of the demise 
 the plaintiff cannot recover on that demise in ejectment. And no 
 recovery can be had on a demise from a party who had no title at 
 the commencement of the suit, nor on a demise from an adminis- 
 trator whose letters of administration are void for the want of juris- 
 diction in the court which granted them. {Goodtitie v. Roe, 20 Ga. 
 E. 135.) Upon the death of one joint-lessor a recovery, however, 
 can be had in ejectment for a moiety of the land at least, as well 
 as of the mesne profits. And where a trial is had after the death 
 of one of the joint-lessors, and before it is known to counsel, on 
 bringing the fact to the knowledge of the court, a suggestion of 
 the death may be made nunc jyro tunc, and thereupon the prevail- 
 ing party is entitled to an amendatory order, vacating tlie judg- 
 ment as to the deceased party, to perfect the record and cure the 
 error. {Bryan v. Avereit, 21 Ga. E.. 401.) And where one of 
 several plaintiffs in ejectment conveys his interest in the premises 
 during the pendency of the suit, the action may still proceed in 
 his name to recover the interest. {Woodrv. McOuire's Children, 
 21 Ga. E. 576. Vide Harris v. Camro-n, 6 ib. 382.) 
 
 Upon the death of one who has been made a co-defendant in an 
 action of ejectment, subsequent to the commencement of the suit, 
 the plaintiff may pi'oceed against the original surviving defend- 
 ants, without making the representatives of the deceased a party 
 to the cause. (Henderson v. HarTcney, 13 Ga. E. 282.) 
 
 It is held in Georgia that, in making out title to land under a 
 sheriff's deed, it is sufficient prima fade evidence to show the 
 execution and the sheriff's conveyance, and that it is not necessary 
 to produce the judgment. Vendees, under judicial sales there, are 
 not put to the same proof in ejectment as in common cases of per- 
 sons buying lands from individuals. This is perhaps a peculiarity 
 in the system of that state. ( Whatley v. Doe, 10 Ga. E. 74. Ham- 
 ilton V. Moseland, 15 ib. 343.) 
 
 Marked trees, as actually run, must control the line, which courses 
 and distances would indicate. If nothing exists to control the call 
 for courses and distances^ the land must be bounded by the courses 
 
EJECTMENT IN FLORIDA. 821 
 
 and distances of tlie grant, according to the magnetic meridian ; 
 but courses and distances must yield to natural objects. All lands 
 are supposed to be actually surveyed ; and the intention of tlie 
 grant is to convey the land according to that actual survey. If 
 marked trees and marked courses are found, distances must be 
 lengthened or shortened, and courses varied so as to conform to 
 those objects. {Rile]/ v. Griffin, 16 Ga. R. 141.) The verdict in 
 ejectment may be for a part only of tlie premises claimed in the 
 , declaration. {Bailey v. Jones, 14 Ga. E. 384.) But it has been 
 held that, where the verdict is too uncertain to enable the court to 
 award judgment upon it, it is void. {Roe v. Doe, 30 Ga. E. 608. 
 And vide Lee v. Toxscott, 2 "Wash. C. C. E. 270.) 
 
 In the state of Florida it is provided by statute, that in all actions 
 of ejectment it shall not be necessary to have any fictitious parties 
 to said suit of ejectment; but the party claiming may bring his 
 suit directly against the party in possession, or the one claiming 
 adversely ; and the declaration must contain a plain statement of 
 the cause of action to entitle the plaintifi" to recover the land in 
 controversy, together with mesne profits ; and the declaration may 
 be in the following form, to wit: 
 
 In the circuit court of Florida, circuit, term A. D. 1870, 
 
 county, to wit: A B, by his attorney, complains of C D, 
 who has been summoned to answer him in an action of ejectment, 
 for that whereas the defendant is in possession of a certain tract 
 or parcel of land situate, lying and being in said county, known 
 and described as follows, to wit (here describe the land) : contain- 
 ing about acres, to which said plaintiff claims title ; and the 
 defendant has received the profits of said land since the day 
 of A. D. , of the yearly value of dollars, and 
 refuses to deliver the possession of said land to the said plaintiff, 
 or to pay him the profits thereof. And the statute further pro- 
 vides that the plea of not guilty, put in by the defendant, shall 
 put in issue the title to the land in controversy. (Laws of 1859, 
 ch. 999.) 
 
 There does not appear to be any other special provisions by 
 statute for the recovery of land, and it would seem that in other 
 respects the action of ejectment is brought and prosecuted in the 
 same manner as other actions. 
 
822 LAW OF EJECTMENT AND ADVERSE ENJ0Y3IENT. 
 
 It is held in Florida, that the rule that a plaijitiiF in ejectment 
 must rely upon the strengtli of liis own title, and not upon the 
 weakness of his adversary's title, is not to be understood as requir- 
 ing that he shall be compelled, in the first instance, to trace liis 
 title back to the original grantor; but only tliat he shall exhibit 
 so mnch as will put tlie defendant to the support of his possession 
 by a title superior to one of a mere naked possession. And it is 
 decided that a plaintiff in ejectment is required, in the first 
 instance, only to show a legal title, and a riglit of entry under it, 
 in order to drive the defendant to the exhibition of a paramount 
 title. And it was declared in the same case that a purchaser at a 
 sheriff's sale has only to show his deed, the execution under which 
 the land was sold, and prove title in the defendant in execution, or 
 ^possession since the rendition of the judgment, aiid that the onus 
 probandi is cast on the opposite party. {Hartley v. FarTell, 
 9 Fla. R. 374.) And this ruling, in respect to the proof in case 
 of the action upon the title of purchase at sheriflf's sale, is in 
 accordance witli the rule laid down by the court in the state of 
 Georgia. {Vide Whately v. Newson, 10 Ga. R. 74.) 
 
 It is held that, until the condition of a mortgage be broken and 
 the same be actually foreclosed, the mortgagor and all claiming 
 under him may maintain an ejectment to recover the possession 
 of the mortgaged premises." {Brown v. Snell, 6 Fla. R. 741.) 
 
 And the courts of Florida also hold, in accordance with the 
 general rule, that a judgment in ejectment is conclusive against 
 the defendant for all profits which have accrued since the date 
 of the demise stated in the declaration in ejectment, but if the 
 plaintiff » sues for any antecedent profits the defendant may make a 
 new defense. It is held that the right to mesne profits is a neces- 
 sary consequence of a recovery in ejectment, and that the recovery 
 in ejectment by an incorporated town of an easement which is a • 
 real franchise holden by the town under provisions of her charter 
 for the benefit of all the citizens, is no exception as to. the right 
 to mesne profits during the occupancy of their property. {City 
 of Apalachicola v. Apalachicola Land Company, 9 Fla. R. 340.) 
 
 In the state of Alabama the statute provides that actions to 
 recover the possession of land may be brought in the nature of an 
 action of ejectment, without any statement of any lease or demise 
 to the plaintiff, or ouster by a casual or nominal ejector ; and, in 
 such cases, the law in relation to the action of ejectment, except 
 
EJECTMENT IN ALABAMA. 823 
 
 60 far as relates to the fictitious proceedings therein, or except so 
 far as the same is changed by the Code, and herein noted, is made 
 applicable thereto. (Code of 1857, § 2610.) 
 
 It is sufficient for the plaintiflFto allege in his complaint that he 
 ■was possessed of the premises sued for, describing the same by its 
 designation at the' land office; or, when that cannot be done, by 
 metes and bounds or other appropriate designation ; and that, 
 after his right accrued, the defendant entered thereupon and 
 unlawfully withholds and detains the same. And in ' all real 
 actions the defendant may, by notice in writing to the plaintiff 
 or his attorney not less than ten days before the trial of the cause, 
 demand an abstract in writing of the title or titles on which he 
 will rely for a recovery, and the plaintiff must be confined to the 
 proof of such title or titles; and, when such abstract is demanded 
 by tlie defendant, he must tender, if demanded by the plaintiff" or 
 his attorney, five days before the trial, an abstract of 'the title or 
 titles on which he ■will rely for defense, and on the trial will be 
 confined to such title or titles. (Code, §§ 2611, 2612.) 
 
 The defendant in a real action may plead that he is not guilty 
 of unlawfully witliholding the premises claimed by the plaintiff, 
 and, upon such plea, may give the same matter in evidence as 
 upon the plea of not guilty in the action of ejectment. Such plea 
 is an admission by the defendant that he is in the possession of the 
 premises sued for, unless he states distinctly upon the record the 
 extent of his possession, in which case it is an admission of pos- 
 session to such extent only. (Code, §§ 2613, 2614.) And where 
 there are more defendants than one, the jury may assess damages 
 arising from the detention of the land and injury thereto, in sev- 
 eralty, against each defendant for distinct damages. But a tenant 
 in possession, and asserting his right thereto under a lease or 
 license from another, is not liable beyond the rent in arrear at the 
 time of suit brought, and that which may accrue during the con- 
 tinuance of his possession. And persons holding possession under 
 color of title, in good faith, are not responsible for damages or 
 rent for more than one year before the commencement of the suit. 
 (Code, §§ 2615, 2616, 2617.) 
 
 If the verdict is for the plaintiff, it must specify whether it is for 
 the whole or a part only of the premises, describing such part, and 
 judgment will be entered accordingly. A judgment by default 
 against a defendant is an admission of title iu the plaintiff"; but to 
 
824 LA W OF EJECTMENT AND ADVERSE ENJ0Y2IENT. 
 
 recover costs against the defendant, the plaintiff must prove pos- 
 session of the premises, or some part thereof, at the commencement 
 of the suit. Two judgments in favor of the defendant in an action 
 of ejectment, or in the nature of an action of ejectment, between 
 the same parties, in which the same title is put in issue, constitute 
 a bar to any action for the recovery of the land or any part there- 
 of, between the same parties or their privies, founded on the same 
 tiile; and for the recovery of land, or the possession thereof, the 
 plaintiff has his election to proceed by the action of ejectment as 
 established at common law, or by writ in the nature of an action 
 of ejectment as provided by statute, and hereinbefore specified. 
 (Code, §§ 2618-2621.) 
 
 In actions for the recovery of lands, or the possession thereof, 
 if it be made to appear that the defendant has a crop planted or 
 growing on the premises, if the jury find for the plaintiif they must 
 also find the value of the premises during the current year, and no 
 writ of possession can be issued until the expiration of the year, 
 if the defendant execute a bond in double the amount of the rent, 
 payable to the plaintiff, with surety to be approved by the clerk, 
 with condition to pay the rent so assessed at the expiration of the 
 year. The bond so taken must be filed in the clerk's ofiice ; and 
 it has the force and effect of a judgment ; and if not paid at matu- 
 rity the clerk, on the application of the plaintiff, must issue execu- 
 tion against all the obligors. (Code, §§ 2600, 2601.) 
 
 When a suit is brought to recover land, or the possession there- 
 of, the defendant may, at any time before the trial, suggest upon 
 the record, that he and those whose possession he has, for three 
 years next before the commencement of the suit, had adverse pos- 
 session thereof. In such case, if the jury find for the plaintiff, they 
 must also ascertain by their verdict whether such suggestion be 
 true or false. And if found to be true, the verdict must show the 
 value of the land, the improvements, and the rents. If the value 
 of the improvements is greater than the rents, the possession of the 
 land may be retained by the defendant, unless the excess of the 
 assessed value thereof be paid by the plaintiff; and if tlie same is 
 not paid within one year, then the defendant, on payment of the 
 value of the land, acquires a good title. (Code, §§ 2602-2605.) 
 
 "When the suit is against a tenant the landlord must, on his own 
 motion, be made defendant ; and damages in real actions for the 
 possession, or use and occupation of land, must be computed to the 
 
EJECTMENT IN ALABAMA. 825 
 
 time of the verdict. But the plaintiff may recover, on motion, tlie 
 rent which may accrue after the judgment in the action. (Code, 
 §§ 2608, 2609.) 
 
 Such are substantially the provisions of the statute of Alabama 
 in respect to the action for the recovery of real property in that 
 state. It has been held by the courts of the state that, in a real 
 action in the nature of an ejectment, a recovery may be had on 
 proof of prior possession by the plaintiff, under color of title, unless 
 he is barred by the statute of limitations, or unless the defendant 
 shows a better title. A possession under color of title, within t"lie 
 meaning of this principle, is necessarily held with claim of right ; 
 and the defendant would show a better title, by proving an out- 
 standing valid title in a third person, or prior possession by him- 
 self under color of title, which he had not abandoned, and which 
 he was not estopped from asserting against the plaintiff. {Russell ■ 
 v. Erwin, 38 Ala. E. 44. MoCall v. Pryor, 17 ib. 533. Cox v. 
 Davis, Ib. 744. Badger v. Lyon, 7 ib. 564. Heydenfeldt v. Mitch- 
 ell, 6 ib. 7.) And it is held that in an action for the recovery of 
 lands, in the nature of an action of ejectment, the plea of not 
 guilty is equivalent to the consent rule, and is an admission of the 
 defendant's possession at the commencement of the suit. {King v. 
 Bunt's Heirs, 29 Ala. E. 542.) 
 
 It has been held that " the west half of the south-east quarter, 
 and twenty-five acres off the west end of the south-west quarter 
 of the north-east quarter, all in section fifteen, township sixteen, 
 range eight," is a sufiicient description of the land sued for, both 
 in the complaint and in the judgment entry. {Sims v. Thompson, 
 30 Ala. E. 158. Drane v. King, 25 ib. 556.) And it seems that 
 in the state of Alabama the administrator of a solvent estate may 
 maintain ejectment, or a real action in the nature of an action of 
 ejectment, for the land of the intestate. {Russell v. Krwhi's Ad- 
 ministrator, 41 Ala. E. 292.) 
 
 A case came into tlie supreme court of the United States some 
 thirty years ago in error to the circuit court of the United States 
 for the southern district of Alabama, in which some very interest- 
 ing questions were examined and decided, and which ought to be 
 noted. The action was ejectment to recover the possession of 
 stores and a lot of ground in the city of Mobile. The declaration 
 was in the common form, and tlie plea, the general issue. A ver- 
 dict was rendered in the circuit court for the plaintiffs, and tho: 
 104 
 
823 ZAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 defendant brought error. The coiirt, among others, laid down the 
 following propositions : 
 
 The relation of landlord and tenant in nowise exists between 
 the Tendor and vendee of land ; and this is especially the case 
 where a eonvej'ance has been executed. The vendee acquires the 
 property for himself, and his faith is not pledged to maintain the 
 title of the vendor. If the vendor has actually made a conveyance, 
 his title is extinguished. 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 
 enjoyment of the premises. 
 
 A volume of state papers published under the authority of an 
 act of congress, and containing the authentication required by the 
 act, is legal evidence. In the United States, in all public matters, 
 the journals of congress and of the state legislatures are evidence, 
 and also the reports which have been sanctioned and published by 
 authority. The publication does not make that evidence which 
 intrinsically is not so ; but it gives in a most authentic form cer- 
 tain papers and documents. The very highest authority attaclies 
 to state papers published under the sanction of congress. 
 
 On the death of the ancestor tlie land owned by him descends 
 to his heirs. They hold it subject to the payment of the debts of 
 the ancestor, in those states where it is liable to such debts. The 
 heirs cannot alien the land to the prejudice of creditors. In fact, 
 and in law, thej' have no right to the real estate of their ancestors, 
 except that of possession, until the creditors are paid. No objection 
 is perceived to the power of the legislature to subjecting the lands 
 of a deceased person to the payment of his debts, to the exclusion 
 of the personal property. The legislature regulates descents and 
 the conveyance of real estate. To define the rights of debtor and 
 creditor is their common duty; the whole range of remedies lies 
 within their province. 
 
 These propositions are . all important in connection with the" 
 action to recover real property, and may frequently be brought 
 into use. ( Wathins'r. Hohnan, 16 Peter's E. 25. And vide Jack- 
 son V. Runiington^ 5 ib. 402. The Society for the Propagation of 
 the Gospel in Foreign Parts v. The Town of Pawlet, 4 ib. 480. 
 WiUison v. WatJcins, 3 ib. 43.) 
 
 In the state of Mississippi the consent rule and all fictions lA 
 actions of ejectment are abolished, and the statute provides that 
 
EJECTMENT IN MISSISSIPPI. 827 
 
 the action of ejectment shall be commenced by tiling a declaration 
 in the name of tlie person claiming the premises in question, as 
 plaintiff, against the tenant or possessor thereof, as defendant. 
 Tiie declaration must describe the premises with such certainty 
 as will distinctly apprise the defendant of their description and 
 situation, and so that from such description possession may be 
 delivered ; and, if the plaintiff claims only an undivided interest 
 therein, it must state such interest; and the declaration may con- 
 tain several counts. If the plaintiff shall claim more than he is 
 entitled to, he may nevertheless recover so much as he sliall prove 
 title to. On filing the declaration, a summons must issue against 
 the defendant, which must be issued, executed and returned as the 
 same is in personal actions. And the defendants, or either of them, 
 may plead to and defend the action eitlier jointly or separately ; 
 the plea must be, not guilty, and must be filed in tlie same time as 
 in personal actions, and under such plea the defendant may give 
 in evidence any lawful defense to the action, not inconsistent with 
 the provisions of l^he act. The defendants, or either of them, may 
 defend for a part only of the premises in question, and in such 
 case the part must be described in the plea with the same certainty 
 required in the declaration. Tiie plea of the defendant will, for 
 the purposes of that action, be construed as an admission that he 
 was in possession of the premises for which he defends at the 
 time of the commencement of the action. If the premises be not 
 described with sufl[icient certainty in the declaration or plea, the 
 court or judge may order the same amended, and, if either party 
 fail to comply with the order, judgment may be entered as for 
 want of a declaration or plea, as the case may be. If the defendant 
 do not file his plea within the time limited, the plaintiff may have 
 judgment by default for the possession of the premises claimed, 
 and for costs. The defendant may limit his defense to a part of 
 the premises claimed by a special plea denying the possession 
 of the part for which he defends, in M-hich case the title of the 
 plaintiff will be admitted ; and then the plaintiff will be entitled 
 to a judgment for the part of the premises not defended for, with 
 costs, and may enter a discontinuance as to the residue. So also 
 the plaintiff may discontinue his action at any time on payment 
 of the defendant's costs. And one of several defendants, who 
 defends separately, may retract his plea, when tlie plaintiff may 
 enter judgment for the part for which he defended. 
 
82S LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 After issue joined in ejectment, either party may demand in 
 writing of tlie other a bill of particulars of his title, and, in default 
 of giving the same, the party will be precluded of the privilege 
 of giving in evidence theproof of his title; and the court or judge 
 may order an amended bill of particulars, when one has been given, 
 and in all cases the evidence of title will be confined to the matters 
 contained in the bill of particulars. 
 
 The petit jury, for the trial of an action of ejectment, must be 
 composed of freeholders, when either party may require it; and 
 the issue is tried as in other actions, and the question on the trial 
 will be as to which of the parties is entitled to the possession of the 
 premises in question. The verdict of the jury must specify how 
 they find, whether for the plaintiff for the whole or part of the 
 premises claimed, and the judgment will be entered according to 
 the verdict. If it appear that the plaintiflF had title at the com- 
 mencement of the suit, but the same had expired during the pend- 
 ency of the action, the plaintiff will have judgment for costs only. 
 And in ejectment the successful party recovers costs of suit of the 
 other party. If it appear that the defendant has title, which in 
 equity would be regarded as superior to the legal title of the 
 plaintifi^, the plaintiff cannot recover; but lie may file a bill in 
 chancery to try the defendant's equitable title. 
 
 When the action is brought by one or more joint-tenants, tenants 
 in common or coparceners, against companions in interest, the 
 defendant may give notice with his plea that he defends as joint- 
 tenant, tenant in common, or coparcener, and admits the right of 
 the plaintiff to an undivided share of the common property, bnt 
 denies any actual ouster, and then an actual ouster must be proved, 
 or the plaintiff will be nonsuited. "When there is a growing crop 
 on the land, for which the action is brought, the same practice 
 is provided for as in the state of Alabama, which may be referred 
 to. A survey of the premises claimed may be procured by either 
 party on application to the clerk. The death of a plaintiff or 
 defendant in ejectment will not cause the action to abate, but it 
 may be continued in the manner provided by statute. Provision 
 is also made for the action to proceed to judgment and execution 
 in case of the death of either party after verdict. A judgment in 
 the action of ejectment is conclusive as to the right of possession 
 established by such judgment, upon the party against whom it 
 is rendered, and all persons claiming from or through such party, 
 
EJECTMENT IN MISSISSIPPI. 829 
 
 except such as labor under disability. (E. S. 1867, ch. 55, arts. 
 1-34.) 
 
 The statute prescribes a form for the declaration, writs and pleas 
 in ejectment, and declares that the same shall be sufficient nnder 
 the act. (R. S. ch. 55, art. 35.) 
 
 To sustain an action of ejectment in Mississippi, the plaintiff 
 must have the legal title to the land at the commencement of tlie 
 action ; an equitable title is not sufficient. The gi-antor in a deed 
 of trust, or a mortgagor, cannot maintain an action of ejectment 
 to recover the premises mortgaged or conveyed in trust, until entry 
 of satisfaction made upon the margin of the record, in tlie manner 
 required by the statute, or proof of payment of the debt secured. 
 And a trustee, liolding the naked legal title, the trusj; being satis- 
 fied, cannot assert that title in an action of ejectment against the 
 cestui qvs trust under the policj' of Mississippi ; nor can the cestui 
 que trust recover in ejectment against the trustee holding only the 
 naked legal title. Where the defendant in ejectment has a title, 
 ■\vliich in equity would be regarded as superior to the legal title 
 of the plaintiff, the plaintiff will not be entitled to recover; but 
 he may file a bill in chancery to try the defendant's equitable title 
 under the Revised Code. Ordinarily, possession, accompanied by 
 a claim of title, is held to he prima facie evidence of a seisin in fee, 
 and sufficient to put the opposite party upon proof of his right. 
 And an outstanding title, set up by a defendant in ejectment to 
 bar tlie plaintiff's right of recovery, must be a present, subsisting, 
 operative title, and not one that lias, in legal presumption, become 
 extinguished. (Heard v. Baird, 40 Miss. R. 793. Brown v. West, 
 8 ib. 181. Thompson v. Wheatley, 13 ib. 499.) A defendant in an 
 -action of ejectment cannot defeat the plaintiff's recovery by show- 
 inw that he has purchased an outstanding title, which was barred 
 by the statute of limitations at the time of his purchase. And 
 where both parties in the action claim title from tlie same common 
 source, and the plaintiff has the older and better title from that 
 source, the defendant cannot defeat his recovery by setting up an 
 outstanding paramount title with which he has no connection. 
 {Griffin v. SheffiAd, 38 Miss. R. 359^ And vide Day v. Cochran, 
 24 ib. 261.) But the plaintiff, in an action of ejectment, who relies 
 upon a deed as the foundation of his title, must show, with reason- 
 able certainty, by proof, that the land in possession of the defend- 
 ant is embraced ia,his deed. And it is held, that a defendant in 
 
830 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 e 
 
 ejectment, having color of title, is not a mere intruder ; and -where 
 he has such color of title he may set up a subsisting outstanding 
 title in a stranger to defeat the recovery of the plaintiff. {Nixon 
 V. Porter, 38 Miss. R. 401.) 
 
 In the state of Louisiana provisions have been made by the 
 legislature fjr the revision of the Code and statutes of the state; 
 but the same have not yet been published, or, if published, they 
 have not come under the observation of tlie author; and it is, 
 therefore, impracticable to give any of their provisions in this 
 treatise. Under the late practice of the state, a petitory action 
 was brouglit, in wliich the mere title to the land in controversy 
 was sought to be litigated and enforced ; and, in addition, they 
 also had the ordinary action of ejectment for the recovery of the 
 possession of real property. But it is uncertain whether these 
 actions are retained in their ancient form in the new Code or not. 
 It is, however, quite probable that they ai-e. In 186G the legisla- 
 ture passed an act wliicli provided that in all suits of ejectment 
 of tenants, filed in the supreme court, the parties shall be entitled 
 to preference, which the court holds cannot operate retrospect- 
 ively, and does not, therefore, apply ;to appeals filed previous to 
 the passage of the act. {Hoa v. Lefranc, 18 La. An. R. 393.) 
 
 It is held by the courts of Louisiana that the petitory action, or 
 the action by which real property, or any immovable right to such 
 property may be subjected, is claimed, must be brought against 
 tlie person, who is in the actual possession of the immovable, even 
 if tlie person having the possession be only the farmer or lessee. 
 But if the farmer or lessee of real estate be sued for this cause of 
 action, he must declare to the plaintiff the name and residence 
 of his lessor, wlio must be made a party to the suit, if he reside in 
 the state, or is represented tlierein, and who must defend it in the 
 place of the tenant, who will be discharged from the suit. And it 
 is held that the plaintiff in an action of revendication must mal<e 
 out his title; otherwise, the possessor, whoever he be, will be 
 discharged from the demand. {Millaudon v. Banny, 18 La. An. 
 E. 196.) 
 
 In a petitory action in Louisiana the plaintiff must succeed on 
 the strength of his own title, and not on the weakness of the 
 adverse title. But where a party obtained a quit-claim deed by 
 falsely and fraudulently attributing to himself certain rights, the 
 couct will not interfere and correct the error., {Cannon v. White, 
 
EJECTMENT IN ARKANSAS. 831 
 
 16 La. An. E. 85. Boolwut v. Anderson, 2 ib. 2i6. Knox v. 
 FulUam, 14 ib. 123.) 
 
 Where a party has expressly recognized the title of another to 
 property, and thus estopped himself from questioning the validity 
 of such title, a party holding the same property under him as 
 vendee must be held to a recognition of that title, and must show 
 that he has acquired the same, or fail in maintaining his right to 
 the property. This was held in respect to the property in a slave; 
 but the same principle, probabl,y, would be recognized in an action 
 for land. {Girault v. Zuntz, 15 La. An. H. 684-. Vide Hughes v. 
 Barrows, 4 ib. 250.) 
 
 Bnt, in the absence of the re%'ision of the statutes and Code of 
 Louisiana, it will not be profitable to occupy space with a refer- 
 ence to the decisions which have been made under the late practice 
 of the state. 
 
 In the state of Arkansas the action of ejectment may be main- 
 tained in all cases where the plaintiif is legally entitled to the 
 possession of the premises. And the action may also be main- 
 tained in all cases where the plaintiff claims the possession of tlie 
 premises under or by virtue of, first, an entry made with tlie regis- 
 ter and receiver of the proper land office of the United States ; 
 second, a pre-emption right under the laws of the United States ; 
 third, where an improvement has been made by him on any of the 
 public lands of the United States, whether the lands have been 
 surveyed or not, and where any person other than those t» whom 
 the right of action is given in the preceding clauses as in posses- 
 sion of such improvement. (Ark. Dig. 1858, ch. 61, §§ 1, 2.) So 
 also the action may be maintained in all cases where the plaintiff 
 claims possession of. the premises iinder or by virtue of an entre 
 made with the proper swamp land agent or land agent of the 
 proper land office of the state of Arkansas ; and the'*patent certifi- 
 cates granted by any of the aforesaid officers are made evidence 
 of title in the party to whom it is granted. (Arkansas Digest, 
 ch. 61, § 5.) 
 
 The action of ejectment must be brought and prosecuted in the 
 real names of the parties thereto, and may be brought against 
 the person in possession of the premises claimed, or his lessor, or 
 both. And the person from or through whom the defendant claims 
 title to the premises may, on his motion, be made a co-defendant. 
 (Dig. ch. 61, §§ 6, 7.) 
 
832 LAW OF EJECTMENT AND ADVERSE ENJOJIIENT. 
 
 It is made sufficient for the plaintiff to aver in his declaration, 
 that, on some day therein to be specified, he was entitled to the pos- 
 session of the premises, describing them, and, being so entitled to 
 the possession thereof, that the defendant afterward, o'n some day 
 to be stated, entered into such premises, and unlawfully withholds 
 from the plaintiff the possession thereof, to his damage any sum 
 he may claim. (Dig. ch. 61, § 8.) 
 
 The executor or administrator of any person who, if living, 
 would be entitled to bring an action of ejectment, may maintain 
 the action in his own name ; and, in that case, he must aver in 
 his declaration that, on the day therein specified, his testator or 
 intestate was in possession of the premises, etc. (Dig. ch. 61, 
 §§ 3, 9.) 
 
 The statute provides that the defendant may plead the general 
 issue to any action of ejectment, or he may plead his defense spe- 
 cially ; and all pleadings and proceedings must be conducted as in 
 personal actions, except where it is otherwise prescribed. Th6 
 general issue must be that the defendant is not guilty of unlaw- 
 fully withholding the premises from the plaintiff, as alleged against 
 him ; and such plea will put in issue every matter required to be 
 established by the plaintiff on the trial to entitle him to recover; 
 and the defendant may, under such pleA, give in evidence any naat- 
 ter in bar of the action. (Dig. ch. 61, §§ 10, 11, 12.) 
 
 To entitle the plaintiff to recover, he must prove that, at the com- 
 mencement of the action, the defendant was in possession »f the 
 premises claimed, and that the plaintiff had title thereto, or had 
 the right to the possession thereof; but, if the action is brought by 
 a joint-tenant, or tenant in common, against his co-tenant, the 
 plaintiff must show, in addition, that he has been actually ousted, 
 or totally denied his right as such co-tenant. (Dig. ch. 61, §§13, 14.) 
 
 If the plaintiff prevail in the action, he may recover, by way of 
 damages, the mesne j)rofits, except where the plaintiff, or those 
 under whom he claims title, may have entered, in any land office 
 of the United States within the state of Arkansas, the improvement 
 of the defendant, and the action is brought to recover the posses- 
 sion of such improvement ; in which case the plaintiff can recover 
 no damages. (Dig. ch. 61, § 15.) 
 
 If the right of the plaintiff to the possession of the premises 
 expire after the commencement of the action, and before the trial, 
 the verdict must be returned according to the fact, and judgment 
 
EJECTMENT IN ARKANSAS. 833 
 
 must be entered only for the damages and costs. If judgment be 
 rendered against the defendant, the judgment will be for tlio re- 
 covery of the premises, and a writ of inquiry will be awarded to 
 assess the damages. And where the judgment for the plaintiff is 
 both for the recovery of the possession of the premises, and for the 
 damages, the plaintiff may have a writ of possession, and an execu- 
 tion for the damages and costs in the same process. Where the 
 judgment for the plaintiff is only for damages and costs, execution 
 •will issue thereon as in personal actions. (Dig. ch. 61, §§16-20.) 
 
 No action of ejectment, where the plaintiff does not claim title 
 to the lands, can be brought or maintained when the plaintiff, or 
 his testator or intestate, has been five years out of possession. 
 (Dig..ch. 61, §22.) 
 
 It has been held that, where the title of the plaintiff in eject- 
 ment is controverted under the general issue, he must prove, first, 
 that he had the legal estate in the premises at the time of the 
 commencement of tlie suit ; second, that he liad the right of entry ; 
 and, third, that the defendant, or those claiming under him, were 
 in possession of the premises. These propositions would seem to 
 be very plainly settled by the statute itself, but it has also the 
 additional force of judicial construction. {Daniel v. Lefevre, 19 
 Ark. R. 201.) 
 
 Tlie courts have held that it was not the intention of the legis- 
 lature to confine the benefits of the act concerning ejectments to 
 the pre-emptor or purchaser, but to extend them equally to all 
 persons who might lawfully succeed to their rights. {Cloyes v. 
 Beebe, 14 Ark. E. 489. And vide McLarren v. Wicher, 8 ib. 122.) 
 
 It has been held that an administrator cannot, as such, maintain 
 ejectment against a tenant in possession of lands belonging to the 
 intestate. {Merrill v. Merrifree^s Administrator, 5 Ark. R. 629. 
 IlilVs Administrator v. Mitchell, Ib. 609.) But the docti-ine of 
 these cases is not warranted by a fair and legitimate construction 
 of the statute from which it is confessedly drawn, and has, in fact, 
 been virtually overruled. {Merrifre^s Administrator v. Merri- 
 free, 8 Ark. R. 9.) 
 
 Under the statute of Arkansas it has been held that a certificate 
 of entry of public land, and payment of the purchase-money, is 
 sufficient evidence of a legal title, unless such entry was void, to 
 enable the purchaser to maintain an action of ejectment. {Gaines 
 V. Sale, 16 Ark. E. 9.) But it has been held that, under the pro- 
 105 
 
834 LAW OF EJECTMENT AND ADVEBSE ENJOYMENT. 
 
 Tisions of the statute, the plaintiff, in ejectment, claiming possession 
 under a patent certificate,' whether as pureliaser of land that has 
 been publicly offered for sale, or under the pre-emption laws of 
 congress, is not entitled to recover rents and profits for iraprove- 
 liients made by the defendant or tliose under whom he claims; 
 and any evidence conducing to prove tliat the improvements were 
 made by the defendant is admissible to defeat the claim for rents 
 and profits. {Hector v. Gainse, 19 Ark. R. 70.) 
 
 A sheriff's deed is held to be evidence, under tlie statute, of the 
 facts recited in it; but if such deed fail to recite all the facts 
 required by the statute, as where it fails to recite the judgment 
 under which the property was sold, it can furnish no evidence of 
 the existence of such facts ; and a party claiming under the deed 
 must prove them aliunde in order to sustain Ins title in an action 
 of ejectment. {Jordan v. Bradshaw, 17 Ark. R. 106. And vide 
 Newton V. The State Bank, 14 ib. 10. Massey v. Gardenhire, 
 12 ib. 638.) 
 
 Finally, in the state of Te.xas all fictitious proceedings in tlie 
 action of ejectment are abolished, and the method of trying titles 
 to land or tenements is by action of trespass, wherein the real 
 names of the parties, plaintiff and defendant, are to be nsed. If 
 the plaintiff in the action obtain a verdict, he may recover in the 
 same action and by the same verdict his damages for mesne profits. 
 The plaintiff" in the action is required to indorse on the original 
 and copy of his petition, that the action is brouglit as well to try 
 the title as for damages ; and the action is tried on its merits con- 
 formably to the principles of the action of ejectment. Tlie defend- 
 ant in such action, where he sets up title to the land in dispute, is 
 required to plead the same, and set out the metes and bounds of 
 •what he claims. And where a tenant is sued for lands of which 
 he is in possession, the real owner, or his agent or attorney, may 
 enter himself on the proceedings as the defendant in the suit. The 
 plaintiff is not required to prove an actual trespass by the defend- 
 ant in the action. And the verdict in the action is not conclusive 
 against the plaintiff, but a new action may be commenced by him 
 for the same lands at any time within one year after the deter- 
 mination of the first one ; and the verdict in the second action is 
 conclusive. The defendant in the action may suggest, at any time 
 before the trial, that he or those under whom he claims have had 
 adverse possession of the lands sued for, in good faith, for one year 
 
EJECTMENT IN" TEXAS. 835 
 
 next before the commencement of the action, and that he or they 
 have made vahiable improvements thereon ; and then, if the jury 
 find for the plaintiff, and find the suggestion of the defendant true, 
 they must also assess the value of the improvements, and the mat- 
 ters will be adjusted between the parties in the action. (Fasehall's 
 Annotated Dig. arts. 5292-5303.) 
 
 A justice of the peace cannot try the title to land, and his judg- 
 ment in such a case has been held to be a nullity. {Hillman v. 
 Baumhacli, 21 Tex. R. 205.) The action may bo maintained only 
 in a court of record, and tlien it will be sustained upon an equi- 
 table as well as legal title. But the plaintiff must show title in 
 himself at the time of the commencement of the suit. {Browning 
 V. Estis, 3 Tex. E. 462.^ Weill v. Eeese, 5 Tex. E. 30. Howard v. 
 Perry, 7 ib. 265. Miller v. Alexander, S ib. 42. Simpson v. Mc- 
 Lemon, Ib. 450.) 
 
 It has been held that the plaintiff may buy in an outstanding 
 title to the land in question after the commencement of the action 
 to recover it. But he must prove the case he states. {George t. 
 Thomas, 16 Tex. E. 85, 86.) 
 
 The action of trespass to try title will not lie in Texas in favor 
 of a mortgagee against the mortgagor. But, where the deed was 
 absolute upon its face, the mortgagee may sue in this action, and 
 frame his petition in the alternative, so as to obtain a judgment 
 of foreclosure, should the defendant prove the defeasahce. And, 
 in such a case, where the mortgagee was rightfully in possession, 
 he 'cannot be ousted by the mortgagor, until he pays the redemp- 
 tion money. {Hannay v. Thompson, 14 Tex. E. 144. Duty v. 
 Graham, 12 ib. 427.) 
 
 It has been held that immaterial errors in describing the land 
 will not vitiate the petition in the action of trespass to try title ; 
 and where the boundaries are erroneously called, but the calls for 
 certain improvements upon the land were correct, the verdict of 
 the jury in favor of proper identity will not be disturbed. It is 
 held that in such a case it is a question of identity. {Lee v. Sali- 
 nas, 15 Tex. E. 497. Smith v. Chatham, 14 ib. 327, 328. Bains 
 V. McWilh,lh.QU.) 
 
 It seems that the object of the indorsement upon the peti- 
 tion, provided by statute, is to notify the defendant of the nature 
 of the action ; and where the charge was trespass quare clausum 
 fregit, and the prayer for the recovery of the land and damagesj 
 
836 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 and the defendant plead title and improvements, the omission of 
 the indorsement was held to he immaterial. {Kolh v. Banlchead, 
 18 Tex. E. 233.) And it is held that the objection cannot he 
 taken after verdict, nor after a plea of "not guilty" had been 
 filed seven years. {Shannon v. Taylor, 16 Tex. E. 423. Bone v. 
 Walters, 14 ib. 567.) 
 
 It has been held that tlie doctrine of estoppel in pais may he 
 applied to boundaries of land ; and the courts of Texas have held 
 that the true rule is as stated by Lord Denman in the case of 
 Pickard v. Sears, 33 English Common Law Eeports, 117, viz.: 
 " Tliat where one, by his words or conduct, willfully causes another 
 to believe the existence of a certain state of things, and induces him 
 to act on that belief so as to alter his own previous position, the 
 former is concluded from averring against the latter a different 
 state of things as existing at the time; and the plaintiff in this 
 case might have parted with his interest in the property without 
 any of those formalities that throw technical obstacles in the way 
 of legal evidence." This rule was applied to statements in respect 
 to boundaries. {Love v. Barber, 17 Tex. E. 318.) 
 
 A plaintiff is entitled in all cases to a second suit to adjudicate 
 upon the title to the land claimed ; and, if the second suit should 
 be dismissed without a trial, the plaintiff may bring a third suit 
 to try the question. {Allen v. Stephens, 18 Tex. E. 669. Danger- 
 field V. Paschal, 20 ib. 541.) But the judgment in the action is 
 conclusive against the defendant in a subsequent action for rents 
 and profits, after the judgment and before the execution of pos- 
 session. And, the defendant's title having been tried in the first 
 action, it is held that he cannot go behind the judgment and set it 
 up again. {Fish v. Miller, 20 Tex. E. 581. Xewis v. San Antonio, 
 Paschall's Ann. Dig. p. 894, note 1146.)- 
 
 By a statute of Texas, " all certificates for head-rights, land 
 scrip, bounty warrants, or any other evidence of right to land 
 recognized by the laws of this government, which have been 
 located or surveyed, shall be deemed and held as sufficient title to 
 authorize the maintenance of actions of ejectment, trespass, or any 
 other legal remedy given by law." (Paschall's Ann. Dig. art. 5303. 
 Hartley's Dig. art. 3230.) An action arising under this statute 
 may be brought in the courts of Texas, where rights, whether legal 
 or equitable, are disposed of in the same suit. But the supreme 
 court of the United States, having decided, after full considera- 
 
T3E ACTIOy FOR MESKE PROFITS. 83T 
 
 tion, that in the courts of the United States suits for the recovery 
 of land can only be maintained upon a legal title, held that a 
 plaintiff in the court below, who had nothing more than an inci- 
 pient equity, could not therefore maintain his action. {Shinburn 
 V. Be Cordova, 24: How. U. S. E. 423. And vide Fenn v. Holme, 
 20 ib. 481.) 
 
 In Texas, however, there is a mixed jurisdiction of law and 
 equity, and the riglit to support trespass to try title there may 
 well exist; but the holder of a mere incipient equity cannot sup- 
 port ejectment upon the common-law side of the circuit court 
 of tlie United States. Such a right has no standing in a court of 
 law. ( Vide Hart v. Turner, 2 Tex. K. 374. Dubois v. Newman, 
 4 Wasli. C. C. E. 76.) 
 
 Thus much in respect to the action for the recovery of real prop- 
 erty in the several states. Tlie cases in which the action of eject- 
 ment will lie in a large number of the states are fully detailed in 
 a previous chapter {ante, cli. 3) ; and fifty-one pages of this work 
 are devoted to the consideration of the subject of tlie statutory 
 policy of the several states in respect to landlord and tenant, and 
 the remedy by ejectment in cases of tenancies under the statutes 
 of the several states, {Ante, chs. 16, 17, 18.) And here the dis- 
 cussion of the principles and practice of the action of ejectment 
 will be concluded, reserving the examination of the' resulting 
 action for mesne profits for a subsequent chapter, ' 
 
 CHAPTEE XLYI, 
 
 THE ACTION FOR MESNE PBOFFrS — THE PA.ETIES TO THE ACTION — THE 
 PLEADINGS IN THE ACTION THE DAMAGES IN THE ACTION. 
 
 The mode and method of recovering mesne profits have been 
 dwelt upon more or less, either directly or indirectly, in the chap- 
 ters herein concerning tlie action for tlie recovery of real property 
 in the several states ; but it is necessary to devote some exainina- 
 tion to the subject in addition to wliat has already been said. 
 In some of the states the statute provides for the recovery of the' 
 mesne profits, with the ordinary damages, in the same action in 
 which the land itself is recovered, and the action for the recovery 
 
838 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of the land is made a bar to any other action or proceeding to 
 recover mesne profits. But, in most cases, even thougli mesne 
 profits may be recovered in tlie same action in which the land is 
 recovered, the common-law action for mesne profits may be main- 
 tained after the action for the recovery of the land has been termi- 
 nated in favor of the plaintiflP. 
 
 In the common-law action of ejectment no provisions exist by 
 which the jury are enabled to inquire into the actnal damages, 
 and include in their verdict the real injury sustained by the 
 plaintiff for tlie wrongful withholding of the possession of his 
 land by the defendant; but, in lieu of this, a remedy has been 
 provided which is far jnore comprehensive and efficacious in its 
 nature than could be obtained by any adaptation to this object 
 of the action of ejectment itself This remedy is termed an action 
 for mesne profits, or the actioi; of trespass for mesne profits; and 
 the rules, principles and practice applicable to this action are in 
 many respects peculiar and exclusive. 
 
 The action for mesne profits cannot be maintained nntil there is 
 a recovery of the land by the plaintiff in an action of ejectment. 
 {Burton v. Austin, 4 Vt. R. 105. Smith v. Benson, 9 ib. 138.) 
 But, after recovery in ejectment, even by default, against the 
 casual ejector, the lessor of the plaintiff may have his action for 
 the mesnef profits against the tenant, both for the nse of the land 
 and*for the costs of the ejectment. {Baron v. Abeel, 3 Johns. R. 
 481. Brown's Lessee v. Galloway, 1 Peter's C. C. E. 291.) And 
 the recovery of nominal damages in the ejectment suit is no bar 
 to the action for mesne profits. ( Yan Allen v. -Rogers, 1 Johns. 
 Cases, 281.) 
 
 By the present practice in the state of New York, the remedy 
 for mesne profits, after recovery in ejectment, is by an action 
 prosecuted by summons and complaint. The principles of tlie 
 provisions of the Revised Statutes in relation to the recovery of 
 mesne profits remain in force, and are to be applied to an action 
 therefor after judgment in ejectment, though in form like the old 
 action of trespass. {Holmes, Administrator, v. Davis, 19 N. Y. 
 E. 488. Same Case, 21 Barb. E. 265.) 
 
 • When a defendant in ejectment is evicted, and afterward 
 restored to possession by an order quashing the habere facias and 
 awarding a writ of restitution, and the writ of restitution itself 
 isi afterward quashed, the defendant is liable to an action for mesne 
 
THE ACTION FOR MESNE PROFITS. 839 
 
 profits. {Trabue v. Xellar, 3 A. K. Marsh. E. 517.) And the 
 action for mesne profits may be maintained by one tenant in com- 
 mon against his co-tenant, when he lias prevailed in a real action 
 to recover his share of the common estate. {Goo^title v. Tombs, 
 3 Wils. E. 118, JBennit v. Bullock,' Z^ Penn. E. 367.) Bnt in 
 MaSfeachusetts a mortgagee cannot recover mesne profits of a mort- 
 gagor," after a judgment for possession, for the time anterior to the 
 recovery of his judgment. ( Wilder v. Houghton, 1 Pick. E. 87. 
 Mayo V. Fletcher, 14 ib. 525.) However, if the mortgagee,, having 
 a judgment for possession upon his mortgage, sue a writ of entry 
 at common law, he may recover judgment for mesne profits from 
 the time of rendition of the prior judgment. {Haven v. Adams, 
 8 Allen's E. '368.) 
 
 The lessor of the plaintifi^, in the antecedent action of ejectment, 
 may bring the action for mesne profits either in his own name or 
 in the name of his nominal lessee. Bnt, if tlic action is brought 
 in the name of the nominal plaintiff", the recover^' is limited to 
 the rents and profits received by the defendant since the date of 
 the demise in the ejectment ; while, if the action is brought in the 
 n^rae of the lessor of the plaintiif iu the ejectment suit, he may, 
 upon proper proofs, recover damages for the rents and profits, both 
 anterior and subsequent to the time of the demise in the ejectment. 
 It is obvious, therefore, that the more preferable course is for the 
 lessor of the plaintiff in the action of ejectment, upon his recovery 
 of judgment, to bring his action for mesne profits in his own name. 
 Besides, when the action for mesne profits is brought in the name 
 of the nominal plaintiff' in ejectment, the court will stay proceed- 
 ings on his part till security for costs be filed. {Jackson v. Peer, 
 4 Cow. E. 147.) "While, in case the action is brought in the name 
 of the real party in interest, the courts will never stay the pro- 
 ceedings until security be given for the costs ; and in, this respect, 
 therefore, it is more advantageous to bring the action in the name 
 of the lessor in the ejectment suit. 
 
 In case the lessor of the plaintiff" in the action of ejectment 
 should die after the premises have been recovered, the action for 
 mesne profits may be brought in the name of the legal representa- 
 tives or devisee of the deceased lessor. And where there are sev- 
 eral separate demises in a declaration in ejectment, an action for 
 mesne profits may be maintained in the name of that lessor upon 
 whose title the recovery was had in the ejectment suit ; and where 
 
84:0: LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 ' it appeared that the sheriflf delivered possession to one of the sev- 
 eral lessors under the habere faaias possessionem, this •was held 
 prima facie evidence that the recovery was upon his title. 
 {Dewey v. Osbo^n, 4 Cow. R. 329.) 
 
 To repeat, an action for the mesne profits is consequential to the 
 recovery in ejectment. It may be brought by the lessor of jthe 
 plaintiff in his own name or in tjie name of the nominal lessee; 
 and in either shape it is equally his action. {Aslin v. Perkins, 
 2 Burr. R. 665, 668.) But, if the action is brought in the name 
 of the nominal lessee in the ejectment suit, the mesne proiits can 
 be recovered only since the time of the demise laid in the declara- 
 tion' in the original action of ejectment. {Denn v. Chubb, Coxe's 
 R. 466. Van Allen v. Rogers, 1 Johns. Cases, 281.) If the 
 interest of the lessor of tlie plaintiff in the ejectment suit to the 
 mesne profits has passed to an assignee, devisee, or personal repre- 
 sentative of such lessor, the action for such mesne profits may be 
 maintained by the successor of such lessor in his own name or in 
 the name of the nominal lessor in the ejectment suit, under the 
 same rules applicable to the original lessor. 
 
 The action for the recovery of mesne profits may be brought 
 against the defendant in the original action of ejectment. In case 
 the defendant in the action of ejectment gave up the possession 
 of the premises in suit to a third person, after the commencement 
 of the suit, the action to recover the mesne profits may be brought 
 against such third person, and he is liable for the same, provided 
 always, of course, that the plaintiff recovers the premises in the 
 ejectment suit. {Jackson v. Stone, 13 Johns. R. 447.) And yet 
 it has been held in Maryland, and such doubtless is the law, that, 
 if a third person entered into possession of the premises during the 
 pendency of the ejectment, the defendant would still be answer- 
 able for mesne profits; and the action for mesne profits may 
 accordingly be brought against him. If he can prove, however, 
 that the plaintiff received the profits, he is not then answerable for 
 the profits so received. (West v. Hughes, 1 liar. & Johns. R. 574.) 
 
 In an action of ejectment by one tenant in common, who has 
 not been ousted, against his co-tenant, the latter may enter into 
 the consent rule, when he does not dispute the title, as to part of 
 the premises only, and the plaintiff' may take judgment as to the 
 residue by default, and recover the mesne profits thereof from his 
 co-tenant. {Langendyck v. Burhans, 11 Johns. R. 461.) And, 
 
TBE ACTION FOB MESNE PROFITS. 841 
 
 generally, it may be affirmed that a tenant in common who has 
 recovered in ejectment may maintain an action for mesne profits 
 against his companion. {Ooodtitle v. Tombs, 3 Wils. E. 118. 
 Cutting v. Derby, 2 Wm. Black. E. 1077. Camjp v. Ilornesley, 
 11 Ired. R. 211.) So also a joint action for mesne profits may be 
 supported by several lessors of the plaintiff in ejectment, after a 
 recovery therein, although there were only separate demises by 
 each. {Clumiier v. Lingon, 5 Maule & Selw. 11. 64. Same Case, 
 2 Chitty's E. 410. Holdfast v. Shepard, 9 Ired. E. 222.) But it 
 seems that the action for mesne profits cannot be maintained 
 against executors or administrators for the profits accruing during 
 tlie lifetime of the testator or intestate ; nor will a court of equity 
 interfere to enforce the payment of them against personal repre- 
 sentatives when the lessor has been deprived of his legal remedy 
 by the mere accident of the defendant's death. But, wliere the 
 lessor was delayed from recovering an ejectment by a rule of the 
 court of law, and by an injunction at the instance of the defend- 
 ant, who ultimately failed both at law and in equity, tlie court 
 decreed an account of the mesne profits' against his (the defend- 
 ant's) executors. (Pultney v. ^Yarren, 6 Vesey, Jr. E. 73.) 
 
 But the action for mesne profits may not only be brought 
 against the original defendant in the ejectment suit, but it may 
 also be maintained against him who was the landlord in fact, who 
 received the rents and profits, and resisted the recovery in the 
 ejectment suit, although he was not a party to that suit, and did 
 not take upon himself the defense thereof upln the record, but 
 another did as landlord. All persons who aid in, or command, 
 or procure a trespass, are themselves deemed in law to be tres- 
 passers, whether they are actually present, or do the act through 
 the instrumentality of their agents and servants. A recovery of 
 the possession, in an ejectment against one of such agents, does 
 not constitute a bar to an action for mesne profits against another 
 agent, for the same reason that the former §uit is no bar to the 
 latter against the defendant in ejectment, namely, that the mesne 
 profits were not a matter in controversy in the ejectment. Upon 
 this reasoning, it is held that it is competent to maintain the 
 action for mesne profits against any trespasser, although not a 
 defendant in the ejectment suit. If the party is the landlord of 
 the parties in possession of the premises recovered, or if he was 
 in the reception of the rents and profits, or if he resisted the 
 106 
 
8 42 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 plaintiff's title and possession, and co-operated iu the acts of the 
 tenants for this purpose, he is liable in the action for mesne profits, 
 and is a proper defendant in the action. {Chirac v. ReinicTcer, 
 11 Wheat. E. 280.) 
 
 And this is also the doctrine of the English courts. In an early 
 case there was a judgment against the casual ejector in the eject- 
 ment suit, and the action for mesne profits was brought against 
 the landlord of the tenant in possession ; and he was proved to be 
 in receipt of the rents and profits from the time of the demise t'ill 
 the writ of possession was executed. The ejectment was served 
 upon the tenant ; there was no evidence that the landlord had any 
 notice that his tenant had been served with the ejectment until 
 after the judgment was recovered ; hut subsequently he promised 
 to pay the rent and the costs to the. plaintiff. The point actually 
 decided in the case Avas, that a party might be charged, in an 
 action for mesne profits, who was not in any sense a party to tlie 
 ejectment, by establishing the title against him, and showing his 
 connection as landlord with the tenant in possession, and his adop- 
 tion of the acts of the latter; and the action was sustained against 
 the landlord in the case. {Hunter v. Britts, 3 Camp. N. P. E. 455.) 
 
 An actual occnpation of the premises by the defendant during 
 the period for which the damages are claimed is not necessary ; it 
 is sufficient in all cases if he was interested in and derived benefit 
 from the premises during that period. {Doe v. Harlow, 12 Adolpli. 
 & Ell. R. 40. Vide Burne v. Richardson, 4 Taunt. E. T20.) 
 
 A mortgagee who recovers the mortgaged premises in ejectment 
 may maintain his action for mesne profits against the assignee of 
 the mortgagor from the time he had notice to quit, and at any rate 
 from the time of the service of the writ of ejectment. {Lyma'tt, v. 
 Morse, 6 Vt. E. 345. But vide Sanderson v. Price, 1 N. J. E. 
 636. Eee<;h v. Hall, 1 Doug. E. 21.) 
 
 In respect to the pleadings in the action for mesne profits, it is 
 necessary that the plaintiff's declaration should expressly state the 
 different parcels of land from which the profits arose, or the defend- 
 ant maj' plead the common bar. The declaration should also state 
 the time when the defendant broke and entered the premises and 
 ejected the plaintiff, the length of time during which he so ejected 
 him, and the value of the mesne profits of which the defendant 
 deprived him ; and a declaration which does not contain these 
 Btatements will be held to be bad on special demurrer. But 
 
TBE ACTION FOR MESNE PROFITS. 843 
 
 defects in tlie declaration, which are merely formal, will be cured 
 bj a verdict, or by a judgment by default and writ of inquiry 
 executed. {Higgins v. Ilighfield, 13 East's E. 407.) 
 
 In the statement of the damages in the plaintiff's declaration, 
 the costs of the ejectment suit may be included, whether the judg- 
 ment be against the casual ejector, or against the tenant or land- 
 lord; and, where the judgment is against the casual ejector for 
 want of an appearance, tlie costs are invariably included in the 
 statement of damages, though it is said to be more prudent in 
 other cases to omit them. {Gulliver v. Drinhwater, 2 Term. E. 
 261. Doe V. Davis, 1 Esp. E. 358. And vide Utterson v. Vernon, 
 3 Term E. 539, 547.) 
 
 In those states wJiere all peculiarities in the forms of pleading 
 are aboli'shed, and the requisites of tlie declaration, petition or 
 complaint are declared by statute, of cotirse the pleadings in tlie 
 action for mesne profits must be framed in accordance with such 
 practice. {Vide Holmes, Administrator, v.' Davis, 19 N. Y, E. 
 488.) For exainjjle, by the Eevised Statutes of the state of New 
 York, the mesne profits were recovered upon a suggestion made 
 upon the record of the judgment in ejectment. But the Code 
 authorizes a plaintiff to unite in the same complaint "claims- to 
 recover real property, with or without damages for withholding 
 thereof, and the rents and profits of the same." So that now, it 
 would seem, the plaintiff, in an action to recover the possession of 
 land, may also recover for the use of the land while the defendant 
 has kept him out of possession ; or he may recover the land in one 
 action, and, having recovered, may afterward bring liis action for 
 the rents and profits. It is probably optional with him whether 
 he will unite the two causes of action or not. But, whatever may 
 be his election, the mesne' profits, in order to their recovery, must 
 be specially counted for. {Livingston v. Tanner, 12 Barb. E. 481.) 
 It has been held in New York, however, that ejectment for land 
 and trespass for injuries to the land committed at the time of the 
 ouster, or intermediate the ouster and the commencement of the 
 action, cannot be joined ; and, though the defendant takes issue, 
 he may insist upon the plaintiff's electing at the trial. This was 
 so held where the two were jumbled together in one count in the 
 plaintiff's complaint. {Budd v. Bingham, 18 Barb. E. 494.) 
 
 The usual plea of the defendant in the action for mesne profits 
 is the general issue^ or not guilty; and, if the plaintiff declare 
 
844 LAW OF BJECTltlENT AND ADVERSE ENJOYMENT. 
 
 against the defeudant for having taken the mesne profits for a 
 longer period than is allowed by tlie statute of limitations, the 
 defendant may plead the statute of limitations, that is to say, not 
 guilty within the period fixed by the statute before the commence- 
 ment of the action, and thereby protect himself from all but the 
 statutory period. Subject to the defense founded on the statute 
 of liniitations, the party entitled to the possession of real property, 
 and of chattels real, may recover the mesne profits from the time 
 his title accrued. ( West v. Hughes, 1 Har. & Johns. E. 574.) But 
 the defendant's plea in the action for mesne pi'ofits must in all 
 catses conform to tlie practice prevailing in the state. 
 
 A set-off cannot ordinarily be pleaded to the action for mesne 
 profits. But, where a defendant had made a payment on account 
 of ground I'cnt becoming due subsequently to the day of the demise 
 in the declaration in ejectment, this payment was deducted from 
 the amount of the damages, on the ground that it was an outgoing 
 rent falling due during the time of his occxipation, from Avhich lie 
 could not exonerate himself, and one which the plaintiff must him- 
 self have paid had he been in possession. {Doe v. Hare, 4 Tyr. 
 E.. -29.) And, in a case where the defendant had a cross claim 
 against the plaintiff for money expended on Ijlie premises, a court 
 of equity granted an injunction to restrain the proceedings at 
 law, because of the absence of the right of set-off in the action for 
 mesne profits. {Gawdor v. Lewis, 1 Younge & Collyer's Tl. 427.) 
 
 It maj' be affirmed that the defeudant in the action for mesne 
 profits will not be permitted to set up any defense which vould 
 have been a bar to the action of ejectment. He cannot set up a 
 title in bar of the action, even if he has a better one than the 
 plaintiff. {Benson v. Matsdorf, 2 Johns. E. 369. Baron v. Abeel, 
 3 ib. 481. Jackson v. Randall, 11 ib. 405. Langendyck v. Bur- 
 Imns, Ib. 461.) And yet it has been held that the action for 
 mesne profits is an equitable one, and will allow of every kind of 
 equitable defense. {Murray v. Gouverneur, 2 Johns. Cases, 438.) 
 But whatever matter may be allowed as a defense to the action 
 for mesne profits, must be pleaded in the manner required by the 
 practice of the state, or the same cannot be made available on the 
 trial of the action. 
 
 In case of necessity, the pleadings in the action for mesne profits 
 may be amended, and amendments to the pleadings are matters 
 in the discretion of the court. Variances between the writ and 
 
TSE ACTION FOB MESNE jPROFITS. 845 
 
 declaration in these cases cannot be taken advantage of after plea 
 pleaded ; and it has been questioned whether, by the modern 
 practice, sncli vai'iances can be taken advantage of at all. {Chirac 
 V. BcinicTcer, 11 Wlieat. R. 280.) 
 
 In relation to the evidence in the action for mesne profits, it 
 may be affirmed that, where the plaintiff seeks to recover the 
 mesne profits which accrued antecedently to tlie day of the demise 
 in the declaration in the ejectment, he must produce the regular 
 proof of his title or riglit to the possession of the premises, and the 
 judgment in ejectment is not admissible in evidence for him. He 
 must also, it appears, in such a case, prove an entry upon the 
 lands, though some doubt seems to exist as to what proof of entry 
 will be sufficient. In general, a recovery in ejectment, like other 
 judgments, binds only parties and privies. It is conclusive evi- 
 dence in an action for mesne profits against the tenant in posses- 
 sion, when he has been duly served with a notice in ejectment, 
 whether he appears, and takes upon himself the defense, or suffers 
 judgment to go by default against tlie casual ejector. The reason 
 is, that in the first case he is the real party on the record ; in the 
 last he is considered as substantially the defendant, and the judg- 
 ment by default, as a confession of the title set up in the ejectment 
 That is to say, this is the rule where the plaintiff' proceeds only for 
 the recovery of the mesne profits accruing subsequently to the 
 day of the demise in the declaration. {Dewey v. Osborn, 4 Cow. 
 R. 329. Marshall v. Dupey, 4 Marsh. N. S. E. 389. Poston v. 
 Jones, 2 Dev. & Batt. R. 294. Whittington, v. Christian, 2 Rand. 
 E. 353. Aslin v. Parkin., 2 Burr. R. 665, 668. But vide Vooght 
 V. Winch, 2 Barn. & Aid. R. 662. Doe v. Huddart, 4 Dowl. P. 
 C. 437. Same Case, 5 Tyr. R. 846.) 
 
 It has sometimes been lield that, upon a plea to the action for 
 mesne profits that the premises were not the premises of the 
 plaintiff, th& defendant was permitted to prove title in himself, 
 notwithstanding the proof of the judgment in ejectment against 
 him. But it seems to be well settled now, that in such case the 
 tenant is concluded by the judgment in ejectment, and cannot 
 controvert the title. The rule is otherwise, however, when the 
 action for mesne profits is brought against third persons, tliat is, 
 ao-ainst persons who are neither parties nor privies to the record. 
 In such case the judgment in ejectment is not conclusive, and the 
 defendant may controvert the plaintiff's title at large. Indeed, it 
 
8i6 iAir OP EJECTMENT AND ADVERSE ENJOYMENT. 
 
 seems doubtful whether the record is even admissible as evidence 
 against strangers on the question of title. {Leland v. Tousey, 
 6 Hill's 11. 328.) It seems, however, that the record of the judg- 
 ment in ejectment in favor of the plaintiff is admissible in evidence 
 in all eases, and against all parties, in the action for mesne profits,- 
 for the purpose of proving the possession of the plaintiff. The 
 plaintiff may certainly prove his possession connected with his 
 title by any sufficient evidence in pais ; aiid, if his possession has 
 been under a judgment of law, he is entitled to establish it by 
 introducing tlie record of the recoverj^, and an executed writ of 
 possession under it. {Cfiirac v. J.ieinicTcer, 11 Wheat. K. 280.) 
 In the action for mesne profits, founded on a recovery by default 
 against the casual ejector, it is in general necessary to show a writ 
 of possession executed. But this is not the rule when the tenant 
 voluntarily abandons the possession, and the plaintiff in the eject- 
 ment enters, or when the plaintiff in ejectment has been let into 
 possession by the defendant. And when the judgment in eject- 
 ment is against the tenant, who comes in and defends, the judg- 
 ment is sufficient evidence in the action for mesne profits, without 
 any writ of possession executed. The tenant in such case cannot 
 controvert the plaintiff's possession, any more than his title, be- 
 cause his possession is part of his title; for tiie plaintiff', to entitle 
 him to recover in an ejectment, must ordinarily show a possessory 
 right not barred by the statute of limitations. {AsUn v. Pai'lcin, 
 2 Burr. E. 663, 668. Jackson v. Combs, 7 Cow. E. 36. Calvart 
 V. Ilorsfall, 4 Esp. E. 167.) 
 
 It has been held in the state of Maryland, that, in an action of 
 trespass brought in the name of the lessor of tlie plaintiff against 
 the tenant in possession for mesne profits from the time of the 
 demise, it is not necessary for the plaintiff to prove an entry or 
 actual possession in him after the recovery in ejectment. {Shipley 
 V. Alexandei'y 3 liar. & Johns. E. 84.) Doubtless the necessary 
 facts would be establislied in such a case by the record of the 
 recovery in ejectment, according to the cases above cited. 
 
 The judgment in the preceding action of ejectment is also evi- 
 dence in the action for mesne profits against a party coming into 
 possession and occupying the premises under the defendant in the 
 ejectment, although not himself included in it; he is in such case 
 a privy to the record. (Doe v. Whitoomh, 8 Bing. E. 46.) And 
 the judgment in ejectment is in like manner evidence when the 
 
TSJS ACTION FOB MESNE PBOFITS. 847 
 
 action for mesne profits is brought against a party wlio has not 
 been in the actual occupation, provided it be proved that the 
 defendant in ejectment was his tenant, and that the relation of 
 landlord and tenant subsisted between them. {Doe v. Harlow, 12 
 Adolph. & Ell. R. 43, note d.) But the relationship of landlord 
 and tenant in such a case must be proved by the production of the 
 agreement between the parties, if the tenancy has not been created 
 by parol. {Doe v. Ilarveij, 8 Bing. R. 239.) 
 
 The judgment in ejectment, like all otliers, only conchides the 
 parties as to the svhject-maiter of it. In an action for niesne 
 profits, therefore, such judgment proves nothing at all beyond the 
 time laid in the demise, because beyond that time the plaintiff has 
 alleged no title, nor could be put to prove any. And, as to the 
 length of time the tenant has occupied, the judgment proves 
 nothing ; nor as to the value. Therefore it must be proved, 
 aliunde the record, how long the defendant enjoyed the premises 
 recovered, and what the value was, and it must appear that it is 
 within the time laid in the demise. {Aslin v. Parlcin, 2 Burr. R. 
 665, 668. Dodwell v. Gibhs, 2 Carr. & Pa. R. 615.) 
 
 Where an action of ejectment is brought against the actual 
 occupants of the premises, and a judgment is recovered therein 
 against the defendants, and an action is subsequently brought by 
 the plaintiffs in the ejectment suit, against the persons under wliom 
 sucli occupanis held the premises, for the recovery of the mesne 
 profits, such plaintiffs, to entitle themselves to recover in the latter 
 action, must show, first, that they had, at tiie time the trespasses 
 mentioned in the declaration were committed, the actual possession 
 of the premises, or a title thereto ; second, tliat the defendants 
 entered upon the possession of the plaintiffs, and expelled them, 
 and kept them out of possession ; third, that the defendants, by 
 their agents or tenants, received the rents, issues and profits while 
 the plaintiffs were kept out of possession ; fourth, that the plaintiffs 
 had, before the commencement of the action for mesne profits, re- 
 entered upon tlie premises, and regained possession thereof; and, 
 finally, the part of-the premises held by the defendants' authority, 
 and the value thereof. If the evidence does not establish each of 
 these facts, the plaintiffs should be nonsuited. 
 
 The judgment record in an action of ejectment against the 
 actual occupants is no evidence of the plaintiff's title or posses- 
 sion, in an action for mesne profits brought against -the persons 
 
848 LAW OF EJECTMENT AND ADVERSE ENJOYMENT. 
 
 of whom sueli occupants held tlie premises, where sucji persons do 
 not claim under the defendants in the ejectment snit. Snch record 
 is no evidence against any one other than the defendants named 
 therein, or persons claiming under them by title accruing after the 
 commencement of the ejectment suit. The fact that persons who 
 are not parties to an ejectment suit undertake the defense of such 
 suit, and fail therein, will not furnish the slightest evidence of the 
 plaintifi''s title or possession in an action against such persons for 
 mesne profits. {Ainslie v. The Mayor, etc., of New Yorh, 1 Barb. 
 E. 158. Vide Poston v. Henry, 11 Ired. E. 301.) 
 
 A judgment in ejectment against a wife is no evidence in an 
 
 ' action for mesne profits against the husband and wife, for the 
 
 wife's confession of a trespass committed by her cannot be given in 
 
 evidence to affect the husband in an action in which he is liable 
 
 for the damages and costs. {Denn v. WJiite, 7 Term E. 112.) 
 
 The amount of the plaintiff's damages must also be proved in 
 the action for mesne profits, and the jury are not confined in their 
 verdict to the mere rent of the premises recovered in the eject- 
 ment, and which were enjoyed by the defendant. Although the 
 action is said to be brought to recover the rents and profits of the 
 estate, the jury may give such extra damages as they may think 
 the particular circumstances of the case may demand. (Goodtitle 
 V. Tomhs, 3 Wils. E. 118, 121.) But, in the action of trespass for 
 mesne profits against a 'bona fide purchaser, he will be allowed 
 against the plaintiff, in mitigation of damages, the value of per- 
 manent improvements made in good faith, to the extent of the 
 rents and profits claimed by the plaintiff. There is no reason, in 
 general, why the owner of land should be compelled to pay for 
 improvements which he neither directed nor desired, as a condi- 
 tion on which he is to gain possession of his property. But tres- 
 pass for mesne profits is an equitable action, intended to do justice 
 to the plaintiff' by putting him in as good situation as he would 
 have held, provided he had not been dispossessed. If waste has 
 been committed, the damages, may be increased accordingly, be- 
 yond tiie measure of the rent, to an extent which will make him 
 whole. And, on the other hand, if improvements are made of a 
 permanent and beneficial nature, and the defendant entered in 
 good faith, the value of such improvements should be deducted 
 from the damages. In snch a case it is very hard for the defendant 
 to lose both land and improvements ; and if the plaintiff is not 
 
TBE ACTION FOR MESNE PROFITS. 849 
 
 content with acquiring possession of his property in an improved 
 sondition after lie has neglected to assert his title for a considera- 
 ble length of time, 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. And this is 
 the view of the subject which is supported by the authorities. 
 {Coulter's Case, 5 Coke's R. 30. Gree7i v. Biddle, 8 "Wheat. E. 
 81, 82. Jackson v. Loomis, 4 Cow. E. 168.) But, although the 
 defendant in the action for mesne profits may set off the value of 
 his improvements, snch value ouglit in the first instance to bo 
 deducted from the profits received before the date of the demise, 
 and which the plaintiff is precluded from receiving. {Ilylton v. 
 Brown, 2 Wash. C. C. E. 165.) 
 
 Sometimes the matter of the damages proper to be I'ecovered in 
 the action for mesne profits is regulated by statute. For example, 
 in the state of New York the Eevised Statutes have prescribed as 
 the measure of damages in this class of cases the same rule which 
 would prevail in assumpsit for use and occupation. The compen- 
 sation in such cases is to be adjusted as upon contract, and not 
 upon the footing of a tort. {Holmes v. Bavis, 19 N. Y. E. 488.) 
 And in New York the plaintiff in the action for mesne profits is 
 entitled to recover the same only for six years. {Jackson v. Wood, 
 24 Wend. E. 443.) But under the present practice the plaintiff iu 
 such action is entitled to recover damages from the time of the 
 demise as laid in the declaration or complaint in the ejectment 
 suit, although a period of more than six years be covered ; pro- 
 vided the defendant has not pleaded the statute of limitations. 
 {AinsUe v. T/ie Mayor, etc., of New York, 1 Barb. E. 168. 
 Code, § 74.) So also in Pennsylvania mesne profits may not be 
 recovered beyond six years, or the limitation of an action of trespass. 
 {Hill V. Meyers, 46 Penn. E. 15.) 
 
 If the costs of the plaintiff in the antecedent action of ejectment 
 are stated as a part of the damages in the action for mesne profits, 
 such damages must be proved in the ordinary manner; and, if 
 the ejectment has been defended, his claim is usually limited to 
 the amount of the taxed costs ; although it has been held that the 
 plaintiff in these cases is entitled to be reimbursed the amount 
 which he has been compelled to pay in obtaining the restoration 
 of the property which the defendant has wrongfully taken or with- 
 held from him. {Brooke v. Bridges, 7 B. Moore's E. 404, 471. 
 107 
 
850 LAW OF EJECTMENT AND ADVERSE ENJOrHENT. 
 
 Doe V. Perkins, 8 ib. 198. Doe v. Davis, 1 Esp. E. 358. Doe v. 
 Hare, 2 Dowl. P. C. 245. And vide Alexander v. Hen, 11 Peun. 
 R. 537.) But, when the judgment in ejectment lias been cl)tained 
 "by default against the casual ejector, the plaintiff is allow'ed to 
 recover reasonable cos'ts as between attorney and client. {Doe v. 
 Iluddart, 4 Dowl. P. C. 437. Sam.e Case, 5 Tjr. R. 846. Norvell ' 
 V. lioake, 7 Barn. & Ores. R. 404.) And, in a case where the 
 defendant in ejectment had appeai-ed and pleaded, and afterward 
 withdrew his plea, the plaintiff in the action for mesne profits, 
 was allowed to recover his costs in the action of ejectment, 
 although they had not been taxed. {Sijmonds v. Page, 1 Cromp- 
 ton & Jervis' R. 29.) 
 
 The rule prescribed by statute in respect to the damages in the 
 action for, mesne profits may be ascertained in sonic instances by 
 reference to the chapters herein in which the action for the recov- 
 ery of real property in the several states is treated ; and perhaps 
 nothing further need be said upon the subject in this place. 
 
PART II. 
 
 OF ADVERSE ENJOYMENT. 
 
 CHAPTER XLYII. 
 
 ADVERSE POSSESSION INVOLVED IN THE STATUTE OF LIMITATIONS — 
 IMPORTANCE OF THE SUBJECT OF ADVERSE ENJOYMENT — HISTORY, 
 
 OBJECT AND DOCTRINE OF ADVERSE POSSESSION RULES IN RESPECT 
 
 TO ADVERSE ENJOYMENT APPLY TO ACTIONS BOTH LEGAL AND 
 EQUITABLE. 
 
 The subject of adverse enjoyment has been examined to a con- 
 siderable extent in the previous chapters of this treatise in which 
 disseisin and tlie statute of limitations are considered ; but the 
 more specific discussion of tlie subject was expressly reserved for 
 a subsequent place. The question of adverse possession of real 
 property is inseparably connected with that of the statute of 
 limitations, because, if there were no statute limiting the right 
 of entry upon, or of bringing the action for the recovery of, real 
 property, there would never be a necessity for scrutinizing the 
 possession to learn whether such possession be adverse or not. 
 Possession in law, to be sure, is prima fcucie evidence of legal 
 title; but, if it actually appear tiiat the title to the property is in 
 a person out of possession, except for the statute of limitations, 
 the possession of such property would avail nothing. So also it is 
 not practicable that there should be a disseisin without the entry 
 upon the land be adverse to the person disseised. It is obvious, 
 therefore, that the whole subject of adverse enjoyment was neces- 
 sarily involved in the consideration of disseisin and the statute of 
 limitations, and that the examination of the subject in tliis place 
 is, hence, considerably abbreviated by the previous discussion of 
 kindred subjects. Indeed, it is not possible to obtain any prac- 
 tical understanding of the subject of adverse enjoyment, without 
 
852 LAW OF ADVEBSE ENJOYMENT. 
 
 a previous knowledge of tlie object and intent of the statute of 
 limitations; and these have been quite elaborately explained in the 
 previous chapters referred to. It remains, however, to point out 
 some general principles which always pertain to an effectual 
 adverse possession, and to consider the cases in which an adverse 
 enjoyment may be made available as a defense to an action 
 brought for the recovery of real property. 
 
 The subject of the adverse enjoyment of real estate has always 
 been one of considerable interest; but especially in the United 
 States, with its immense territory, and the commercial and manu- 
 facturing habits of its population, the subject has become one of 
 very great importance, and one which has elicited much legal dis- 
 cussion and judicial decision. In some instances the statutes of 
 the state expressly declare what shall constitute an adverse pos- 
 session of lands, while in others the question rests on judicial 
 construction and decision. So also in some instances the statutes 
 simply take away the remedy for the right of entry upon lands 
 after the limited period, while in others it is expressly enacted 
 that an uninterrupted possession of the property for the limited 
 length of time shall of itself constitute a complete title. However 
 this may be, it is all the same to the person in the adverse enjoy- 
 ment ; for, if he cannot be disturbed in liis possession, it is wholly 
 a matter of indifference to him whether he is sustained in his 
 claims because the law vests the title in him, or whether the true 
 owner of the proi^erty is estopped from asserting the actual title. 
 As a general rule, it may be affirmed- tliat quiet and peaceable 
 possession of real property is prima facie evidence of the higliest 
 estate in the propertj', that is to say, a seisin in fee ; and, if such 
 possession is continued withoiit interruption the whole period pre- 
 scribed by the statute of limitations, the evidence becomes positive 
 and conclusive ; but, in order that it have this latter effect, the 
 possession must be adverse. Wlienever the statute declares what 
 shall constitute the possession adverse, the question is settled by 
 a reference to the statute, and the decisions of the courts which 
 have been made under it. But, when the statute is silent iipon the 
 subject, the question is settled by general principles which have 
 been sanctioned and established by the courts. The law deems 
 every man to be in the legal seisin and possession of land to which 
 he has a perfect and complete title ; this seisin and possession is 
 co-extensive with his right, and continues till he is ousted thereof 
 
WSAT CONSTITUTES AN ADVERSE POSSESSION. 853 
 
 by an actual adverse possession. This is a settled principle of the 
 common law, repeatedly recognized and adopted by tlie courts of 
 this country, and is not now to be questioned. ( Vide Green v. 
 Litter, 8 Cranch's E. 229, 230. BaTr v. Grais, i Wheat. E. 213, 
 233. Propagation Society v. Pawlett, 4 Peters' E. 480, 505, 506. 
 Glarh v. Gourtney,, 5 ib. 354, 355.) And every person in the 
 actual possession of lands is presumed to be in possession thereof 
 as the owner of the title, or in subordination to the title of the 
 true owner. The fact of possession ^g/- 5e;, tlierefore, however long 
 it may have endured, does not establish the title, because it is not 
 considered the possession of the precarious occupier, but of hini 
 upon wliose pleasure its continuance depended. {Lord Gholmon- 
 delly V. Lord Gliiiton, 2 Jacob & "Walker's E. 1.) Clearly, it is 
 not possession alone which will bar tlie true owner, but that pos- 
 session must be adverse. Wiiat then will constitute a valid and 
 effectual adverse possession ? To this it may be answered, that it 
 is not quite easy to lay down any precise rn^e by which to deter- 
 mine the question ; and yet it becomes the duty of him who 
 assumes to write npon the subject to examine it with care, and 
 endeavor to place it upon the basis of original legislative enact- 
 ment. And as a frequent recurrence to first principles in any 
 science is said to be the greatest safeguard against error, so will 
 a judicious investigation of the policy of the statute of limitations 
 tend to a correct determination of the various questions which 
 may arise under it. Happily, a learned senator in the late court 
 of errors of the state of Isew York once gave a history of the 
 statute limiting the right of entry into land, and the principle and 
 policy of the statute, in a case involving the subject of adverse 
 possession before that court for decision. From the statements 
 of the senator, it appears that more than two centuries and a half 
 have now elapsed since the enactment of the English statute of 
 limitations (21 James I, ch. 16), and which has been adopted in 
 this country, and was substantially re-enacted soon after the 
 organization of our government. It was adopted in England 
 after near a century of experience under a statute of Henry YIII 
 of more than double the period, intended and calculated " to 
 impose diligence on and vigilancy in him that was to bring his 
 action ;" and it has been sustained by the united concurrence and 
 approbation of all succeeding legislators and jurists to the present 
 time. No one who has reflected upon the subject, and whose 
 
854 LAW OF ADVERSE ENJOYMENT. ' 
 
 observation and experience qualify him to judge, but will sanction 
 and applaud the wisdom and policy of a statute, the object and 
 obvious tendency of which is to promote the peace and good order 
 of society by quieting possessions and estates and avoiding litiga- 
 tion. But for the intervention of the statute, there would be no 
 end to the revival of dormant and antiquated titles, and many an 
 honest citizen who now, by its benignant operation, enjoys in 
 security the few acres his industry has acquired, and which have 
 been improved by his labor, and enriched by "the sweat of his 
 brow," would be driven from his home by an enemy more insidious 
 and more destructive to the peace of community tlian an invading 
 army. These are substantially the declarations of a learned sen- 
 ator of New York, more than forty years ago, in respect to the 
 statute of limitations then in force in this state; and they arc 
 equally applicable at the present day, and in connection with tlie 
 statutes of limitations existing in all the states. {Za Fromiois v. 
 Jackson, 8 Cow. 11. 589, G15, G16.) Statutes of limitations are 
 always enacted upon the presumption that a valid claim will not 
 be forborne for any great length of time, and that a possession 
 and occupancy, bearing an aspect of right, will not be acquiesced 
 in but for some availing reason ; and the design of such statutes 
 is to give a force and efficacy to such evidence of right that shall 
 make it effectual to the protection of him who has the advantage 
 of it. But no person can plead the statute of limitations unless 
 his possession has been adverse to that of the person who claims 
 against him. When a possession has been held under a claim 
 unequivocally adverse for the whole period prescribed by the 
 statute of limitations, and the rightful owner has been under no 
 disability, and there has been no. fraud, such adverse possession 
 will constitute a complete bar to an action brought for the recov- 
 ery of the land thus held. And this rule is equally applicable to a 
 proceeding for equitable relief as to an action at law. From the 
 earliest ages, courts of equity have refused their aid to those who 
 have neglected for an unreasonable length of time to assert their 
 claims, especially when the legal estate has been transferred to 
 purchasers without notice. Although the statutes of limitations 
 do not, as a general thing, extend to suits in chancery, yet the 
 courts, both in England and in this country, have acknowledged 
 their obligation. Their application is never controverted, but is 
 oftea expressly recognized; As early as the closing of the last 
 
WSAT CONSTITUTES AN ADVERSE POSSESSION. S55 
 
 Century, Lord Redcsdale, in discussing tins point, revie^ved the 
 cases wliicli had then been determined, and said •' that it had been 
 a fundamental law of state policy, in all countries and at all times, 
 that there should be some limitation of time beyond which the 
 question of title should not be agitated. * * * But it is said 
 that courts of equity are not w^ithin the statute of limitations. 
 This is true in one respect ; they are not within the words of the 
 statute, because tlie words apply to particular legal remedies; 
 but they are witliin the spirit and meaning of the statutes, and 
 have been always so considered." {Ilornden v. Lord Annesly, 
 2 Schoales & Lefroy's R. 607. And vide Elmendorf v. Taylo7', 
 10 Wheat. E. 152. Drayton v. Marshall, 1 Rice's Eq. E. 373. 
 Armstrong v. liisteau, 6 Md. R. 256. Jenner\. Tracy, 3 P. Wras. 
 R. 287, note. Bowman v. Wathc7i, 1 How. U. S. R. 189.) 
 
 Boyle, Ch. J., in delivering the opinion of the court in a case 
 in equity in state of Kentucky, pe;-tinently remarked : ""We do 
 not suppose that the statute of limitations in terras applies to this 
 case, but it is no less obligatory upon a court of equitj^ than upon 
 a court of law, and it is so considered as the rule of decision in 
 relation as well to equitable as legal rights. In reference to the 
 latter, a court of equity decides in obedience to the statute ; and, 
 in reference to the former, it conforms to the statute by acting 
 upon its principles according to the rule equitas sequitur li^gemP 
 {Lyle V. Howton, 1 Marsh. R. 519. And vide Frame v. Kenny''s^ 
 Heirs, 2 ib. 145. McDowell v. Ilea^Ks Execxdors, 3 ib. 123. 
 Ilinton V. Fox, 3 Littell's R. 372. Wallace v. Duffield, 2 Serg. & 
 Rawle's R. 521. Hamilton v. Sheppard, 3 Murph. R. 115. Van 
 Rhyn v. Vineent^s Executors, 1 McCord's Ch. R. 314. Marquis 
 Cholmondeley v. Lord Clinton, 2 Jack. &"Walk. R. 192.) And it 
 has been laid down in so many words, that it is well settled in the 
 supreme court of the United States, " that a possession which will 
 bar an ejectment is also a bar in equity." (Runt v. Wicyiiffe, 
 2 Peters' "r. 212.) 
 
 Such being the rule, both at law and in equit}"-, the important 
 inquiry returns as to what constitutes an adverse possession. Mr. 
 Smith, in his searching review of the great case of Taylor v. 
 Horde, 1 Burr. R. 60, involving the question of adverse possession, 
 says : " The doctrine of adverse possession, lintil very lately, con- 
 stituted, and perhaps still constitutes, one of the least settled 
 although most important heads of English law. The difficulties 
 
856 ZAW OF ADVERSM ENJOYMENT. 
 
 which surrounded it seem to have had an origin subsequent to the 
 abolition of a great proportion of the ancient tenures by statute 
 12 Car. 2, chap. 2i. Before that court the diiference seems to 
 have been well understood between the sort of wrongful holding 
 which would reduce the interest of the lawful owner to a right 
 capable of being barred by the statue of limitations, and substi- 
 tute the wrong- doer for liira meanwhile, as the representative of 
 the freehold and the person responsible to the lord for feudal dues 
 and services, and tliat species of unwarrantable possession which 
 was accompanied by no such consequences. At all events, it is 
 not till a comparatively modern period that we find any com- 
 plaints about the difficulty of ascertaining wliat did or what did 
 not constitute adverse possession. At least, however, this difficulty 
 not only arose, but became so considerable, that, in Taylor dem. 
 Atkyns v. Horde, so long the leading case upon this subject, we 
 find Lord Mansfield saying, that ' the precise definition of what 
 constituted a disseisi7i, which made the disseisor the tenant to the 
 defendant's praecipe, though the right owner's entry was not taken 
 away, was once well known, but is not now to be found. The 
 more we read tlie more we shall be confounded.' The view taken 
 by his lordship in that case is, that disseisin, at the common law, 
 'signified some mode or other of turning the tenant out of his 
 tenure, and usurping his place and feudal relation ;' an act which 
 •was accompanied with this consequence, namely, that if the dis- 
 seisor died seised, the desc;ent to his heir gave him, the right of 
 possession, and tolled or took away the true owner's entry. (Co. 
 Litt. 238, a. Litt. 42{).) Tliis being the state of things at com- 
 mon law, the assize of novel disseisin was invented ; which being 
 found a beneficial remedy, but being applicable only to the case 
 of a person disseised, a fiction grew up and was encouraged by the 
 courts, according to which a party wrongfully out of possession, 
 although not disseised, properly speaking, of the freehold, was 
 permitted to treat the wrong done him as a disseisin for the sake 
 of entitling himself to an assize. ' In a word,' says Lord Mans- 
 field, ' for the sake of the remedy, as hetween the true owner and the 
 wrong-doer to punish the wrong, and aa between the true owner and 
 naked possessor to try the title, the assize was extended to almost 
 every case of obstruction to an owner's full enjoyment of lands, 
 tenements and hereditaments.' This sort of supposed disseisin 
 obtained the name of disseisin at election, for the purpose of dis- 
 
WHAT CONSTITUTES AN ADVERSE POSSESSION. 857 
 
 tinguishing it from the other, or actual disseisin, the consequences 
 of which were widely different. For^ after an actual disseisin, the 
 disseisor could not devise or dispose of the lands, inasmuch as liis 
 interest was, by the disseisin, cut down to a right of entry which 
 the policy of the old law against maintenance would not allow 
 him to depart with ; and, furtlier, if a descent was cast after a 
 year, he lost his right of entry, and was put to his real action in 
 order to reinstate himself. When statute 21 Jac. I, cap. 16, had 
 passed, his condition became still worse ; for, by that act, it was 
 ordered, 'that no person shall make any entry into any lands, 
 tenements or hereditaments, but' within twenty years next after 
 his or their right or title shal] first descend or accrue to the same, 
 except infants, femes coverts, persons nan comjyos mentis, impi'is- 
 oned or beyond the seas, who shall have ten years next after his 
 and their full age, discoverture, coming of sound mind, enlarge- 
 ment out of prison, or coming into this realm, to make their entry, 
 or claim in.' Previous to this the claimant might have entered at 
 any time, provided that his entry was not tolled. {BeviWs Case, 
 Co. 11, h.) But this statute, in twenty years, barred the disseisor's 
 entry in the same way tliat a descent cast barred it at the common 
 law ; and the right owner was, after that time, put to his real 
 action, the period for commencing which had been before limited 
 by statute 32 Henry YIII, chapter 1, and was in tire extreme case — 
 that, namely, of a writ of right on the demandant's ancestor's own 
 seisin — terminated at the expiration of sixty years from the time 
 when the right first accrued which the writ was sued forth to 
 recover. This statute, however, it is apprehended, only, ran 
 against the true owner in those cases in which he would, at com- 
 mon law, have been put out of his tenancy, and reduced to his 
 right of entry; but not to cases in which he might have elected to 
 consider himself disseised, although not really so, for the purpose 
 of entitling himself to maintain an assize; and, consequently, 
 whenever the question arose, whether a particular claimant was 
 barred by having been twenty years out of possession, the mode 
 of solving this question was by considering whether he had been 
 out of possession under such circumstances as had reduced his 
 interest to a right of entry ^ for, if he had, then, as that right of 
 entry would be barred by statute 21 Jac. I, at the end of twenty 
 years, the possession during the intermediate time was adverse to 
 him. l^ow, in order to determine whether the claimant had been 
 108 
 
858 LAW OF ADVERSE EXJOTMEKT. 
 
 out of possession under circumstances which ■would turn his estate 
 to a right of entry, it was necessary to inquire in what manner 
 the person, who had been in possession during tliat time, held. 
 (See Reading v. Boyston, Sal. 423.) If he held in a character 
 incompatible with the idea that the freehold remained vested in 
 the claimant, then, as the case would arrange itself under some 
 one of the heads, disseisin, abatement, discontinuance, deforce- 
 ment, or intrusion, all of which expressed, at common law, differ- 
 ent modes of substituting a freeholder by wrong for one by right, 
 so as to make the new-comer tenant to the lord and to a stranger's 
 prsecipe (see 1 lioll. 059, etc. ; Co. Litt. 277, and the note ante 
 p. 382), it followed that tlie possession in such character was 
 adverse. Bnt it was otherwise if he held in a character com- 
 patible with the claimant's title. And, in order to ascertain in 
 what character the person in possession held, the court would look 
 at liis conduct while in possession. (See Doe d. Gruhh v. Gruhh, 
 10 B. & C. R. 816. Smertle v. Williams, 1 Salk. E. 246. Williams 
 V. T/i.omas,12 East's R. 141. Doe v. Perkins, 3 M. & S. E. 271. 
 IMl V. Doe d. Siirtees, 15 B. &. A. R. 687. Doe d. Foster v. 
 Scoit, 4 B. & C. R. 716. Doe d. Herman v. Fettet, 5 B. & A. R. 223. 
 And R. V. Axbridge, 2 Ad. & Ell. E. 520.) It is therefore appre- 
 hended tliat, at the time of the enactment of 3 and 4 William IV, 
 chapter 27, the question, whether possession was or was not adverse, 
 was to be decided by inquiry whether the circumstances of that 
 possession were sufficient to evince its incompatibility with a free- 
 hold in the claimant. It is not intended to carry tiie discussion 
 of tliis part of the subject much further, since the above statute 
 lias, as will be shown, rendered the doctrine of adverse possession 
 of less importance, so far as claims of title founded upon twenty 
 years' enjoyment are concerned." (2 Smith's Leading Cases, 396. 
 44 Law Library, 393.) 
 
 Since tlie decision of the great case of Taylor v. Horde, in Lord 
 Mansfield's time, an unexampled amount of litigation has been had 
 in respect to adverse possession, and the general doctrine of the 
 cases would seem to be tolerably well settled. It will be the 
 object of the following chapters to state what the doctrine of 
 the Courts is upon this important branch of the subject under 
 discussion. 
 
POSSESSION- MUST BE UNDER CLAIM OF TITLE. 859 
 
 • CHAPTER XLYIII. 
 
 ADVERSE POSSESSION MUST BE BASED UPON A COLOR AND CLAIM OF 
 TITLE — WHAT IS COLOR OF. TITLE — ILLUSTRATIONS OF THE DOC- 
 TRINE. 
 
 From the general tenor of the authorities upon the subject, it 
 may be safely affirmed, in tlie first place, that, to constitute a valid 
 and effectual adverse possession, the possession must have com- 
 menced under color and claim of title ; that is to say, the posses- 
 sion must have been under color and claim of title ; or, as some 
 of the authorities define it: adverse possession is a possession 
 under color and claim of title. "The 'principle on which the 
 statute of limitations is predicated is, not that the party in whose 
 favor it is involved has set up an adverse claim for the period 
 specified in, the statute, but that such adverse claim is accompa- 
 nied by such invasion of the rights of the opposite party as to 
 give him a cause of action, which having failed to prosecute 
 within the time limited by law, he is presumed to have extin- 
 guished or surrendered ; a mere claim of title, unaccompanied by 
 adverse possession, gives no right of action to the person against 
 whom it is asserted, and consequently his rights are unaficcted by 
 the statute." {Abeel v. Harris, 11 Gill & Johns. R. 371. And 
 vide Coaper v. Smith, 9 Serg. & Eawle's R. 26.) The possession, 
 in order to be adverse, must be accompanied with the claim of 
 the fee, which, by construction of law, is deemed prima facie 
 evidence of such an estate. {Jackson v. Porter, 1 Paine's 0. C. 
 R. 457.) The statute of limitations is intended, not for the pun- 
 ishment of those who neglect to assert their rights, but for the 
 protection of those who have remained in possession under a title 
 supposed to be good. {Ifclver v. liogan, 2 "Wheat. R. 25.) 
 
 The principle is well settled by authority, that an entry upon 
 land in possession, actual or constructive, of another, in order to 
 operate as an ouster, and give possession to the parties entering, 
 must be accompanied by a claim of title. When there is no claim 
 of title, the possession cannot be adverse to the true title. Any 
 person in possession of land, with no claim to the premises what- 
 ever, must in presumption of law be in possession in amity with, 
 and in subservience to, the true title* {Harvey v. Tyler, 2 "Wall. 
 
860 LAW OF Adverse enjoyment. 
 
 R. 328. Kincheloe v. Treadwells, 11 Gratt. E. 605. Ewing v. 
 Burnett, 11 Peter's E. 41, 52. Vide also Green v. Lessee of Neal, 
 G ib. 491.) 
 
 Ill testing a defense founded on possession, courts of justice 
 direct their attention to tlie time durino; wliich it has continued, 
 and its character. The latter respects its notoriety, tlie nature of 
 the occupation, and especially the intention with wliicli it is taken 
 and continued. If it be a naked possession, not accompanied witli 
 any claim of right, it will never constitute a bar, but will inure to 
 the advantage of tlie real owner. It is a possession in his right 
 and for his benefit. The law presumes, till the contrary be shown, 
 that a man in possession without title intends to hold for the true 
 owner; in other words, that he intends to hold honestly so far as 
 lie can consistently with holding at all. It is a general l-ule^ that 
 every possession of land has the presumption of right in its favor, 
 and, this being the presumption of law, may be contradicted or 
 destroyed by proof; but, until it is destroyed, the p.ossession is 
 adverse to any other claimant. The presumption which the law 
 thus raises in favor of the actual occupant may be destroyed by 
 proof of his having received a lease, or evidence of his having 
 paid rent, or acknowledged the title set up ; or it may be destroyed 
 by showing that the occupant entered without pretending to any 
 claim or right whatever ; in which case the law adjudges the pos- 
 session to be in subservience to the legal owner ; for he can derive 
 no benefit from a legal presumption, who, by his own acts, shows 
 that the presumption cannot apply; the fact that no claim of right 
 was made shows that none existed. These are principles so well 
 settled by judicial decisions, that citations are uncalled for. Hence 
 a claim of right is necessary, not because the statute always requires 
 it, but because the want of such claim is evidence sufficient to 
 destroy the legal presumption of right. The quo animo a posses- 
 sion is taken or held furnishes the true test of its character. The 
 possession, to be adverse, must be shown to have been hostile in 
 its inception, or that, having been begun in consistency with the 
 rightful title, its character has changed ; but there must be ade- 
 quate cause for the change, or for imputing it. Where it com- 
 mences under acknowledgment of the right owner's estate, the 
 possession will retain its original quality through any succession 
 of occupants of the laud ; and will be presumed to be in subser- 
 vience to the rightful interest. The sti'ictest. proof of hostile 
 
POSSESSIOX MUST BE UNDER CLAUI OF TITLE. 8G1 
 
 inception of the possession is required. As to the supervening 
 change of possession, that must he proved hy an accession of 
 another title, iand other circumstances furnisliing a motive for 
 cxchisive claim. Eut every possession is adverse, and entitled to 
 the peaceful and henignant operation and protecting safeguard 
 of the statute of limitations, which is not in subservience to the 
 title of another, eitlier by a direct acknowledgment of some kind, 
 or an open or tacit disavowal of right on the part of the occupant ; 
 and it is in the latter case only that the law adjudges tlie posses- 
 sion of one to the benefit of another. ( Vide United States v. 
 Arredondo, 6 Peters' !R. 743. Clark v. Courtney, 5 ib. 354. 
 Bradstreet v. Huntington, Ib. 402. Mclver v. lioyan, 2 AVheat. 
 R 29. Kirk v. Smith, 9 ib. 241, 288. Za Fro?nbois v. Jackson, 
 8 Cow. E. 589. Gittens v. Zowry, 15 Ga. R. 336. Jackson v. 
 Potter, 1 Paine's C. C. E. 457. Markleij v. Amos, 2 Bailey's E. 
 603. Hay y^ Barker, 1 B. Mon. E. 364. Moore v. 3foore, 8 Shep- 
 ley's E. 350. Lamb v. Foss, Ib. 240. Millay v. Millay, 6 ib. 387. 
 Hamilton v. Paine, 5 ib. 210. Bead v. Thompson, 5 Barr's E. 
 103. Diksman v. Parrish, 6 ib. 210. Hall v. btephens, 9 Mete. 
 E. 418. Moore v. Johnston, 2 Spears' E. 288. Bogers v. Hill' 
 house, 3 Conn. E. 403. Borrets v. Turner, 2 Hay ward's E. 114. 
 Armour v. White, Ib. 69. Grant v. 'Winiborne, Ib. 57. Anony- 
 mous, Ib. 134. Hatch v. Hatch, Ib. 34. Taskerh Lessee v. Whit- 
 tington, 1 Harr. & McIIenry's E. 151.) 
 
 But, while adverse possession is a possession under color and 
 claim of title, and the statute of limitations ripens no possession 
 into title which is unaccompanied with a color of title, it has never 
 been considered as necessary to constitute an adverse possession 
 that there should be a rightful title. As a general rule, where 
 possession is taken under color and claim of title, and continued 
 for the requisite period, it bars an action brought for the recovery 
 of the property ; and it is immaterial how defective that title may 
 be, or -whether the occupant makes color under a written or parol 
 contract, or even any contract at all. It is well settled that a con- 
 tinued possession for the length of time required by the statute of 
 limitations, under pretense or claim of right, ripens into a right 
 of possession, M'hich will toll an entry; and, -whenever tlie statute 
 of limitations is set up as a defense, the idea of right is excluded. 
 {Jackson v. Wheat, 18 Johns. E. 44. Jackson v. Newton, Ib. 355. 
 Smith V. Lorrilard, 10 ib. 356. Smith v. Burtis, 9 ib. 180. JacJc- 
 
862 LAW OF ADVERSE ENJOYMENT. 
 
 son V. Woodruff, 1 Cow. E. 276. Jackson v. Camjp, lb. 605.) To 
 constitute an adverse possession of land, an entry under color or 
 claim of title is sufficient ; and it is wholly immaterial whether 
 the title afterward turns out to be valid or invalid. Nor is it 
 material, when the entry is made under a conveyance, whether 
 such, conveyance does or does not contain covenants of warranty. 
 And it has been held that, where the sheriff sells lands upon exe- 
 cution, of which land the judgment debtor is in possession claim- 
 ing under a devise in fee, and the purchaser takes possession under 
 the sheriff's deed and continues in possession for the statutory 
 period to limit an action for its recover}', by himself or his grantees, 
 and there is nothing in the circmnstances to induce a belief tliat 
 the purchaser at such sale knew the judgment debtor had no title, 
 the legal inference is that the possession is adverse to the whole 
 world ; and, unless something afterward occurs to change the 
 adverse character of the possession, the right of the real owner is 
 barred. And it has also been held that the result will be the same 
 when the entry is under color of a conveyance from the sheriff, 
 although such conveyance is not iipon its face sufficient to convey 
 the legal title. {Jackson v. Newton, 18 Johns. R. 356.) And the 
 fact that the purchaser from the sheriff is afterward induced to 
 doubt the validity of his title under the sheriff's sale, where he 
 continues in possession under the same, it seems, will not destroy 
 the adverse character of that possession. {Northrop v. Wright, 
 7 Hill's E. 476.) It has been held by the supreme court of Georgia 
 that a sheriff's deed is admissible in evidence as color of title, 
 although unaccompanied by the execution under which the prop- 
 erty was sold. Considering that the sheriff sold without authority, 
 and this is the most that can be presumed from the absence of tlie 
 fieri facias, and that consequently the conveyance was void, still 
 the court held, that, if the purchaser took and held possession 
 under the deed, it was good as color of title. {Burkhalter v. 
 Edwards, 16 Ga. E. 593.) And it was held in North Carolina 
 that a sheriff's deed which recited the execution under which the 
 sheriff sold the land, and it thus appeared that such execution was 
 tested and signed by the deputy cleric instead of the clerk him- 
 self, would inure as color of title, notwithstanding the constitution 
 requires all writs to bear teste and be signed by the clerks of the 
 respective courts. {Den v. Putney, 3 Murph. E. 562.) One who 
 enters into possession of land under a deed purporting to convey 
 
POSSESSION MUST BE UNDER CLAIM OF TITLE. 863 
 
 to him an estate in fee, claiming to be sole and exclusive and 
 absolnte owner in fee thereof, may be regarded as holding adverse 
 to all the world. {Bradstreet v. Huntington, 5 Peter's E. 401.) 
 A deed pnrporting to be executed by virtue of a power of attorney 
 from the owner of the land, which power is not proved, aifords 
 sufficient color of title on which to found an adverse possession, 
 if tliere has been a good constructive possession under it. {Monro 
 V. Merchant, 28 N. Y. E. 9.) 
 
 It seems to be well settled by authority, that it is enough that 
 the possession of land be under a claim of title, to clothe it with 
 the character of an adverse holding, and to give it eflicacy as a 
 defense, when of sufficient duration to be a bar; and that an 
 invalid or defective title, if believed to be good, will be equally 
 operative with a valid one in -giving effect to a possession taken 
 and held under it. To give color of title does not require the aid 
 of a written conveyance or other evidence in writing ; but it is 
 only necessary that the entry be made under a lona fide and not 
 a pretended claim of title existing in another. {La Frombois t. 
 Jackson, 8 Cow. E. 589. McCall v. Neely, 3 Watt's E. T2.) Even 
 if the grantor in deeds be justly chargeable with fraud, but the 
 grantees did not participate in it, and when they received their 
 deeds had no knowledge of it, but accepted the same in good faith, 
 the deeds upon their face purporting to convey a title in fee, and 
 showing the nature and extent of the premises, the supreme 
 court of the United States hold there can be no doubt the deeds 
 give color of title under the statute of limitations. {Oregg v. The 
 Lessee of Sayre, 8 Peter's E. 244.) Indeed, it may be regarded 
 as settled, upon authority, that, however wrongful or fraudulent 
 the possession, or defective the title, an entry under claim of 
 exclusive title, founding such claim upon a written conveyance, 
 accompanied by a continued possession for the requisite period, 
 constitutes an effective adverse possession. Possession by the 
 defendant in an action of ejectment with a claim of title can no 
 more be answered by averring that he knew he was wrong, than 
 could the bar of two years, for example, in slander, by the known 
 falsehood of the libel for which it is prosecuted. So long as a man 
 is in possession of land claiming title, however wrongfully, and 
 with whatever degree of knowledge that he has no right, so long 
 ■the real Owner is out of possession in a constructive as well as an 
 actual sense. It is of the nature of the statute of limitations 
 
LAW OF ADVERSE ENJOYMENT. 
 
 ■when applied to civil actions, in effect, to mature a wrong into a 
 right by cutting off the remedy. To warrant its application in 
 ejectment, the books require color of title, by deed or other docu- 
 mental semblance of right in tlie defendant, only where the defense 
 is founded on a constructive adverse possession. But neither a deed 
 nor any equivalent muniment is necessary where the possession is 
 indicated by actual occupation, and any other evidence of an 
 adverse claim exists. Tlie muniment is but one circumstance by 
 which to make out an adverse possession. An oral claim of exclu- 
 sive title or any other circumstances by which the absolute owner 
 of land is distinguished from the naked possessor, are equally 
 admissible, and may be equally satisfactory. The law seems 
 anxious to extend its protection over the actual occupant of land. 
 Statutes limiting real actions generally operate in favor of the 
 men who cultivate the soil or inhabit the dwelling-houses of the 
 country, and cannot discriminate between the rich and the poor, 
 the powerful and the weal^, the wise and the ignorant. Looking" 
 at tlieir tendency to encourage men not only in the pursuits of 
 agriculture, but every great interest of the nation, an argument 
 of policy arises for their equal and steady application, even more 
 strong tlian of statutes which are passed to limit personal actions. 
 All, however, are framed on the most salutary principles of general 
 policy. They have, with great propriety, been termed statutes 
 of repose. They fix a term broadly marked and easy of proof, at 
 which litigation is arrested ; beyond which every man is enabled 
 to pronounce that his possessions are no longer open to disturb- 
 ance. The great oljject, no doubt, is to interpose the presumption 
 arising from delay against tlie loss of evidence and the fictions of 
 perjury ; but in this view alone neither open wrong nor established 
 fraud could be admitted as an exception without striking at the 
 principle itself; neither can be received without proof, and that 
 would bring back the very danger which the statutes are intended 
 to obviate. For these and kindred reasons, it has been expressly 
 held,. that neither fraud in obtaining the possession of land, 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 buinging his action within the prescribed period ; nor will 
 his ignorance of the injury, until the statute has attached, excuse 
 him, though such injury was fraudulently concealed by the con- 
 trivance of the wrong-doer. But the possession, to bo adverse, 
 
BONA FIDES NOT NECESSARY. 865 
 
 must be inconsistent with the title of the true owner who is out 
 of possession ; it must be accompanied with a claim of title exclu- 
 sive of the rights of all others, and must be definite, notorious, 
 and continued for the period prescribed by the statute ; and that 
 is all that is required to ripen the possession into a perfect title. 
 {Humbert v. Trinity Church, 24 "Wend. R. 587.) 
 
 Bona fides does not seem to be requisite to adverse possession, 
 although there are some cases in which the idea is intimated that 
 fraud may be received as an answer to the statute of limitations, 
 when the statute is interposed against a legal claim. But it will be 
 found, on examination, that those cases in which such an intima- 
 tion is contained generally arose under the statute concerning 
 champerty and maintenance, and not when the statute of limita- 
 tions was in question. Possession has often been held to be 
 adverse imder the statute of limitations, when it would not be 
 within the meaning of the statute concerning champerty and 
 maintenance. ( Vide Jachson v. Andrews, 7 Wend. E. 152. 
 Livingston v. The Peru Iron Company, 9 ib. 511.) After the 
 statutory limit, it is always considered dangerous to open an 
 inquiry upon the hona fides of the defendant's claim. In one 
 case in North Carolina, where the limitation is only seven years, 
 the right to inquire into the good faith of the claim on Which the 
 defendant predicated his possession was denied. In that case the 
 defendant, as the plaintiff alleged, had fraudulently obtained a 
 grant from the state, which he knew covered a part of the plaint- 
 iff's previous grant ; and held seven years' possession under it. 
 The jury were charged, at nisi prius, that no paper writing 
 founded in fraud could operate as color of title in favor of him 
 who was party to the fraud ; and the question of such fraud was 
 left to them on the evidence. They finding for the plaintiff, a 
 new trial was granted. The court remarked that the act of limita- 
 tion which had passed in 1715 was general ; and the judge, deliv- 
 ering the opinion of the court, adds : " I would say that the law 
 so construed is politic and wise. On the one hand, it may be said 
 that no mala fide possessor should acquire a right, no matter how 
 long his possession may have continued. Yet, as parol evidence 
 must be gone into for the purpose of proving the mala fides, and 
 it being a thing dependent on knowledge in the possessor, a thing 
 which may be drawn upon him by perjury without a possibility 
 of contradiction, the object of passing the act would be frustrated. 
 109 
 
866 LAW OF ADVERSE ENJOYMENT. 
 
 It would tend to render titles insecure. {Den v. Zegget, 3 Mni-pli'. 
 E. 539.) And this is in accordance with the general tenor of all 
 the cases, both English and American. As early as the reign of 
 Queen Elizabeth, the English courts recognized the doctrine. A 
 statute had declared that a fine should operate as a bar to all 
 strangers, saving to all persons and their heirs such right as they 
 had, so that they pursued it by action or entry within five years 
 next after proclamations made. It was held that not even ivfants 
 or femes coverts were excepted, but all limited to the five years, 
 because the statute did not except them in words. It is added : 
 " "Whosoever considers that this act was made for the general tran- 
 quility and quiet of inheritance throughout the realm, which are 
 more to be favored than the non-age of an infant in a case which 
 rarely happens, will not think this a hard or rigid construction ; and 
 although sometimes a case happens for wliich there is no remedy, 
 yet that does by no means impeach the reasonableness or justice 
 of the law, seeing the great number of people wlio are provided 
 for by it." It is then shown that there might be several successive 
 infancies, and added : " Tlien the right would come to be tried when 
 it is out of the memory of any man living, and yet in such a dark case 
 a jury would be under the necessity of giving a verdict ; and such 
 darkness and ignorance would be the means of introducing perjury 
 and many other mischiefs which the makers of the act intended to 
 prevent by removing the cause of them, viz., by limiting a certain 
 time, which tliey did not intend should be exceeded, althoiigli some 
 particular persons might suifer for it." ( Stowel v. Ld. Zouch, Plow- 
 den's R. 358, 371. And vide Maddock v. Bond, 1 Irish Term R.. 
 332, 340.) Those cases cited from the courts of North Carolina, 
 and the English exchequer, arose under statutes of short limitation, 
 and the strict doctrine laid down is much morie appropriate in cases 
 of long than in short limitation ; and in a case in the English court 
 of chancery, the master of the rolls. Sir Thomas Plumer, speaking 
 of a bar in twenty years by adverse possession, uses this strong 
 language : " The question is never a question as to the title belong- 
 ing to the plaintiff or defendant : time shuts out the inquiry into 
 the title, except only to ascertain that the possession has been de 
 facto adverse to the claimant; whether aiaounting strictly to a 
 disseisin, abatement or intrusion, is of no consequence, provided 
 it has been adverse ; that is, inconsistent with the title of the claim- 
 ant. The defendant in possession has a riglit to stand on the 
 
BONA Finns NOT NECESSARY. 867 
 
 defensive, and throw upon the plaintiff the burden of getting over 
 the preliminary plea in bar by showing a title to sue ; that is, by 
 proving that he has made his entry or filed his bill within twenty 
 years. The question respects the plaintiff's right to the remedy, 
 not the defendant's title to tlie estate. A tortious act can never 
 be the foundation of a legal, any more than of an equitable title. 
 It is no more favored by a court of law than a court of eqnity, 
 considered nakedly by itself; but the statute bar arises from other 
 principles, admitting the title, if it could be inquired into, to be 
 clearly in favor of the plaintiff and against the defendant, still 
 the question is whether he has prosecuted that title in time. The 
 quiet and repose of the kingdom, the mischief arising from stale 
 demands, the laches and neglect of the rightful holder and all the 
 other principles Of public policy take away the remedy notwith- 
 standing the title veri domini, and the tortious holding of the 
 possessor. To advert to the merits is to shift the question from 
 the real subject of inquiry. The case never arrives at that point ; 
 it is stopped in limine, equally in the courts of equity as of law. 
 The title is changed in both by the operation of a public law 
 upon public principles without regard- to the original private 
 right. If the negligent owner has forever forfeited by his laches 
 his right to any remedy to recover, lie has in effect lost his title to 
 recover. Tlie defendant keeps possession without the possibility 
 of being ever disturbed by any one." And in another part of 
 the same case, the same learned master of the rolls, adverting to 
 the rule at law, said, that at law, "the lapse of twenty years 
 affords a substantive insuperable plea in bar. It is the fixed limit 
 to the remedy; the temjpus constitutum. One day beyond is as 
 much too late as one hundred years. This is the peremptory, 
 inflexible rule at law, fixed by positive statutes, if there has 
 been adverse possession and no disability or fraud. No plea of 
 poverty, ignorance or mistake can be of any avail. However 
 clear and indisputable the title if the merits could be inquired 
 into, however demonstratively tortious and wrongful the adverse 
 possession, the fact of such possession and the time preclude all 
 investigation of the title. The door of justice is closed. The 
 claimant cannot be heard to show his title. It is a decisive 
 answer to him that he comes too late. That alone is the bar. His 
 title remains, but he has lost his remedy. The statute is founded 
 upon the wisest policy, and is consonant to the municipal law of 
 
868 ZAW OF ADVERSE ENi'OTMENT. 
 
 every country. It stands upon the general principle of public 
 utility. Interest reipublieas ut sit Jinis litium, is a favorite and 
 universal maxim. Tlie public have a great interest in having a 
 known limit fixed by law to litigation, for the quiet of the com- 
 munity, and that there may be certain fixed periods, after which 
 the possessor may know that his title and right cannot be called 
 in question. It is better that the negligent owner, who has omit- 
 ted to assert his right within the prescribed period, should lose his 
 right, than that an opening should be given to interminable litiga- 
 tion, exposing parties to-be harassed by stale demands after the 
 witnesses of the facts are dead, and the evidence of title lost." 
 {Cholm,ondely v. Clinton, 2 Jao. & Walk. E. 1, 139, 140, 155.) 
 The bill was dismissed ; the plaintiff appealed to the house of 
 lords, and the decree was afiBrmed. The case was finally disposed 
 of in 1821. It was considered, and was treated by the court, as 
 one of the highest importance ; it was decided by the court, upon 
 a full review of all the cases which were then to be found in the 
 books, and it certainly gives a most just and clear view of 
 the general policy of the statute of limitations and the nature 
 of adverse possession. So it may be safely affirmed that in all 
 cases, unless a statute intervenes and establishes a different 
 doctrine, a possession to be adverse need only to be under color 
 or claim of title, that is, inconsistent with the title of the claim- 
 ant who is out of possession. It is inconsistency', or such a claim 
 as puts the plaintiff at defiance, no matter how wrongful, or with 
 what degree of known wrong in the possessor, or how defective 
 the title under which the possession is claimed. ( Vide Northrup 
 V. Wright, 7 Hill's E. 476. Bogardus v. Trinity Church, 4 Sand- 
 ford's Ch. E. 633, 712, 738.) It is the very office of the statute of 
 limitations to mature a possession, in itself wrongful, if accompa- 
 nied by even a pretense of title, into a legal right. It should be 
 stated, however, that in some of the states, as in Georgia, it is pro- 
 vided by statute that no possession will be considered adverse 
 unless evidenced by written evidence of title, and any forged or 
 fraudulent title will not be evidence of adverse possession. But 
 this is contrary to the general rule, and where no statute exists to 
 the contrary, the doctrine is to the effect before stated. By the 
 execution and delivery of a deed of land, the entire legal interest 
 in the premises becomes vested in the grantee ; and if the grantor 
 continues in possession afterward, his possession is not that of an 
 
WHERE COLOR OF TITLE NOT NECESSARY. 869 
 
 owner, but of a tenant of the grantee. He will be regarded as 
 holding the premises in subserviency to his grantee ; and nothing 
 short of an explicit disclaimer of such relation, and a notorious 
 assertion of right in himself, will be sufficient to change the char- 
 acter of his possession and render it adverie to the grantee. But 
 from the time when the grantor explicitly disclaims holding under 
 the grantee, and openly asserts his title to the premises, in hostil- 
 ity to the title claimed under his own previous deed, his possession 
 becomes adverse, even though he knows his title to be bad ; and 
 from that moment the statute of limitations will begin to operate. 
 {Burhans v. Van Zandf, 7 Barb. E. 91.) 
 
 It has been held by the New York court of appeals that, to 
 make the possession of land adverse so as to avoid a deed thereof 
 under the statute of the state against champerty, such possession 
 must be under the claim of some specific title. A general assertion 
 of ownership, irrespective of any particular title, is insufficient. 
 Accordingly, when a party occupied one hundred and thirty acres, 
 having a title to one hundred only, but supposing the entire tract 
 so occupied to include but one hundred acres, his possession was 
 held not adverse so as to render a grant by the true owner cham- 
 pertous. But it was expressly declared that the rule would be 
 otherwise, in respect to adverse possession for the purposes of 
 the statute of limitations. In the latter case, the possession is 
 adverse if under claim of title, though not specified, and a general 
 assertiQn of ownership is sufficient. {Orary v. Goodman, 22 N. 
 Y. R. 170.) 
 
 In Pennsylvania, Chief Justice Tilghman, delivering the opinion 
 of the supreme court in a case involving the question of adverse 
 possession, said : " Our law permits all persons, whether in or out 
 of seisin or possession, to transfer their claim, such as it is, good 
 or bad, by deed or will. And I have no manner of doubt that 
 one who enters as a trespasser, clears land, builds a house and 
 lives in it, acquires something which he may transfer to another ; 
 and if the possession of the two, added together, amounts to 
 twenty-one years, and was adverse to him who had legal title, the 
 act of limitations will be a bar to his recovery." {Overfield v. 
 Christie, 7 Serg. & Rawle's E. 177. And vide Munshown v. 
 Patton, 10 ib. 334. Den v. Alpough, 2 Penn. E. 452. Lessee of 
 Potts V.' Gilbert, 1 Hall's Jour, of Juris. 256.) ■ So, also, in tho 
 state of Ohio, the courts hole) that the possession under which a 
 
870 XAW OF AS VERSE ENJOYMENT. ■ 
 
 person claims to be protected by the statute of limitations must be 
 actual, notorious, continued, exclusive and adverse; but whetlier 
 there is or is not color of title, is regarded as wholly immaterial. 
 {Lessee of Payne v. Skinner, 8 Ohio E. 159. Lessee of Abram v. 
 Will, 6 ib. 164.) And in the state of Indiana, it is held that 
 color of title is not necessary to constitute an adverse holding so 
 as to bar an action under the statute of limitations of that state. 
 {Banman v. GruUs, 26 Ind. E. 419. Doe v. HerricJc, 14 ib. 242.) 
 And the same rule is adopted in a few other states under the 
 j^eculiar phraseology of the statutes in force in such states. Eut 
 the general doctrine is, that simply entering upon a piece of land 
 without title, and occupying and improving it, are not sufficient to 
 constitute the possession adverse ; it is incumbent upon the pos- 
 sessor to show that his possession was taten and continiied under 
 a claim or color of title; although a contrary opinion has been 
 occasionally expressed. And as a general rule, the claim or color 
 of title must be prima facie valid, or what purports to be valid. 
 That is to say, if the claim of the party was invalid upon its face, 
 or the act or deed under which he claims is void, it cannot be the 
 foundation of an adverse possession. To illustrate, if the party 
 should assert that he was the exclusive owner of the land of which 
 he was in possession, but that all the title he had was a license 
 from a party who had himself no title ; or if he should claim to 
 own the premises under a conveyance not sufficient in form to 
 pass the title, his possession cannot be adverse. In these cases 
 there is no color of title. If an adverse possession be claimed 
 under a grant or couveyanee which never could have been the 
 foundation of a good title, it cannot bar the recovery of one who 
 shows a perfect title. If the claim of title is under a conveyance, 
 obviously the conveyance must be good in point of form, profess- 
 ing to convey the entire title, and properly executed, or the 
 possession taken under it will not be adverse. {La Frmnhois v. 
 Jackson, 8 Cow. E. 589, 605. Dvfour v. Campane, 11 Martin's 
 E. 715. Frigiie y. Hopkins, 4 ib. N. S. 224. Bowne v. Powers, 
 3ib..462.) Eut any instrument having a grantor and grantee, 
 and containing a description of the lands intended to be conveyed, 
 and apt words for their conveyance, is held to give color of title. 
 {Brooks V. Bruyn, 35 111. E. 392. And vide Ohilds v. Showers, 
 18 Iowa E. 261.) 
 
WSAT IS COLOR OF TITLE. 871 
 
 It has been said that " if a man enters on land, without claim 
 or color of title, and no privity exists between him and the real 
 owner, and such person afterward acquires what he considers a 
 good title, from that moment his possession becomes adverse." 
 {Jackson v. Thomas, IG Johns. E. 301.) But this doctrine must 
 not be understood as authorizing the piirchaser to consider a naked 
 possession a good title. It must be, according to the authorities, 
 such a title as the law will, prima facie, consider a good title, 
 otherwise there would be no uniformity. The character of tlie 
 possession might be made to depend upon tiie understanding of 
 the tenant, and the same possession, which would be a good defense 
 to one, would be worthless to another. {Jackson v. Frost, 5 Cow. 
 E. 346.) " If the title under which the acquisition is made be 
 null in itself from defect in form, or discloses facts which show the 
 person from whom it is acquired has no title, it cannot form the 
 basis of this prescription; because. the party acquiring must be 
 presumed to know the law, and consequently wants the anirno 
 domini, which is indispensable in cases of this kind. But when 
 the title is free from these defects, and the property is not trans- 
 ferred, by want of title in the party making the transfer, then it 
 forms a good ground for the prescription ; or, in other words, the 
 inquirj' is, whether the error be one of fact or of law." {Frigue 
 V. Hopkins, 4 Mart. R., IN". S. 224. And vide Francois v. De La 
 lionde, 8 Mart. R. 619, 631. Uoskins v. Holme, 4 Littell's E. 310.) 
 And the conveyance of a person having no authority to execute it 
 is of no validity, and is not sufficient upon which to predicate an 
 adverse possession ; a void deed is not such a conveyance as that a 
 possession under it will be protected by the statute of limitations. 
 {Lessee of Powell v. Hatman, 2 Peters' E. 241. And vide Den v. 
 Turner, 9 Wheat. E. 668.) It should be stated, however, that the 
 decisions of the Louisiana courts may not tend to establish the 
 general doctrine contended for, because, by the statute of limita- 
 tions of that state, it is provided that the. prescription arising from 
 the possession of land must be based upon good faith and appar- 
 ently good title ; so that, by the express language of the statute, 
 if the title be defective in form, there can be no basis for the 
 limited prescription. But the general doctrine is, substantially, 
 in accordance with the decisions of the Louisiana courts above 
 cited. The possession, in • order ^o be adverse, must be under a 
 claim of the absolute title to the lands, and if the claim is predi- 
 
873 LAW OF ADVERSE ENJOYMENT. 
 
 cated upon a deed or other conveyance, the same must be sufficient 
 in \&vf, prima fade, to vest in the possessor the title. And it has 
 heen held tliat an adverse possession cannot be founded on an ab- 
 solutely void conveyance, even though the conveyance may be 
 sufficient in form. (Jackson v. Andrews, 7 Wend. R. 152. Marsh 
 V. Weir, 21 Texas E. 97.) But the latter opinion is that the cir- 
 cumstance that the title claimed is void, or that it was commenced 
 in fraud of the law, does not detract from the force of an adverse 
 possession commenced under it {Bogardus .v. Trinity Church, 4 
 Sand. Ch. E. 633); although an adverse possession founded by 
 the grantee upon a deed obtained by fraud, or upon a deed exe- 
 cuted for the grantor by a person acting without authority, to tlie 
 knowledge of the grantee, will not be extended beyond the limits 
 of the lands actually occupied. {Livingston v. Peru Iron Com^ 
 pany, 9 Wend. E. 511.) Where a person holding a power of 
 attorney authorizing him to convey lands in his own name, or in 
 the name of his principal, and he deed in his own name, the deed 
 is his, and a good foundation for an adverse possession. {Thur- 
 man v. Cameron, 24 Wend. E. 87. And vide Hill t. Wilson, 2 
 Murph. E. 14.) But a writing to serve as color of title must, at 
 least,, not be one in which the writer disclaims title in himself, and 
 admits title in another. {Doe v. Zane, 25 Ga. E. 178.) 
 
 The courts have concurred, it is believed, without an exception, 
 in defining " color of title " to be that which in appearance is title, 
 but which in reality is no title. They have equally concurred in 
 attaching no exclusive or peculiar character or importance to tlie 
 ground of the invalidity of an apparent or colorable title; the 
 inquiry with them has been, whether there was an apparent or 
 colorable title, under which an entry or claim has been made in 
 good faith. The authorities seem to be conclusive to the point, 
 that a claim to property, under conveyance, however inadequate 
 to carry the true title to such propertj', and however incompetent 
 might have been the power of the grantor in such conveyance to 
 pass a title to the subject thereof, yet a claim asserted under the pro- 
 visions of such a deed is strictly a claim under color of title, and one 
 which will draw to the possession of tlie grantee the protection ot 
 the statutes of limitation, other requisites of those statutes being 
 complied with. This subject was somewhat recently before the 
 supreme court of the United States, and the former decisions of 
 that court upon the question were elaborately examined, and the 
 
WEAT IS COLOR OF TITLE. 873 
 
 conclusion was declared in accordance with these views, and it 
 was decided that what is color of title is matter of law, and when 
 the facts exhibiting the title are shown, the court will determine 
 whether they amount to color of title. But good faith in the party, 
 in claiming under such color, is 1 question of fact for the jury. 
 ( Wright v. Mattison, 18 How. U. S. E. 50. Lea v. Folic County 
 Copper Company, 21 ib. 493. Wales v. Smith, 19 Ga. R. 8. 
 Diolcinson v. Brown, 30 HI. E. 299. Hanna v. Henfro, 32 Miss. 
 E. 123.) 
 
 It has sometimes been held at nisi prius that the comptroller's 
 deed to a purchase at a tax sale, containing the usual averments, 
 and purporting to convey the title, is not sufficient upon which to 
 predicate an adverse possession, without proof of the authority 
 of the comptroller to sell the land ; but this is undoubtedly a mis- 
 taken view of the law. Although the deed may be insufficient as 
 a proof of title, it should be received, in connection with proof of 
 possession, to establish a defense under the statute of limitations. 
 In such a case the defendant is not bound to show that all the 
 requisites of the law have been complied with in order to make 
 the deed a valid and indefeasible conveyance of title. . ( Vide Fin- 
 lay V. Cooh, 54r Barb. 9. Same Case, 1 Albany Law Journal, 103.) 
 If the court should require such proof, before a defendant could 
 have the benefit of the statute of limitations, it would require 
 him to show that he had no need of the protection of the statute 
 before he could be entitled to it; and such is the tenor of .a deci- 
 sion of the supreme court of the United States. Statutes of limita- 
 tion are said to be founded on sound policy. They are statutes 
 of repose, and should not be evaded by a forced construction. It 
 is not necessary that he who claims their protection should have a 
 good title, or any title but possession. A wrongful possession, 
 obtained by a forcible ouster of the lawful owner, will amount to 
 a disseisin, and the statute will protect the disseisor. . One who 
 enters upon a vacant possession, claiming for himself upon any 
 pretense or color of title, is equally protected with the forcible 
 disseisor. Statutes of limitation would be of little use if they 
 protected those only who could otherwise show an indefeasible 
 title to land. Hence, color of title, even under a void and worth- 
 less deed, has always been received as evidence that the person in 
 possession claims for himself, and, of course, adversely to all the 
 world. Color of title is received in evidence for the purpose of 
 110 
 
874 ZAW OF ADVERSE ENJOYMENT. 
 
 showing the possession to be adverse. {Dillingham v. Brown, 
 38 Ala. E. 311. Little v. Magguier, 2 Me. E. 176. Brachett, 
 jPetitioner, 53 ib. 236. Pillow v. Roberts, 13 How. U. S. E. 472. 
 Ilerrick v. Doe, 4 Ind. E. 164. Sutton v. McZoud, 26 Ga. E. 
 638. Bailey v. Boolittle, 24 111. E. 577.) And yet, as has been 
 before asserted and shown, a deed void on its face, or disclosing 
 facts which show the person from whom it is acquired had no 
 title, cannot form the basis of an adverse possession. {Moore v. 
 Brown, 11 How. U. S. E. 424. Simmons v. Lane, 25 Ga. E. 178. 
 Marsh v. Weir, 21 Tex. E. 97.) But, to constitute a color of title, 
 there need not be a regular chain of conveyances. If the posses- 
 sion has been taken in such a way as to authorize a belief that the 
 possessor imagined that he was occupying his own propertj"-, that 
 will be a color of title. {Sawyer^s Lessee v. Shannon, 1 Cooke's E. 
 356.) The principle is, that possession under a claim of title, with 
 or without deed, is adverse ; and this principle applies as well in 
 case of easements, incorporeal hereditaments, and interests in land, 
 as to the title to land itself. {Barker v. Salmon, 2 Mete. E. 32. 
 Brown x. King, 5 ib. 173. Ashley v. Ashley, 4 Gray's E. 197. 
 And vide Kent v. Earcourt, 33 Barb. E. 491, 497.) 
 
 CHAPTEE XLIX. 
 
 ABVERSE POSSESSION MUST BE HOSTILE IN ITS INCEPTION IT MUST BE 
 
 UNDER A CLAIM OF THE ENTIRE TITLE, AND EXCLUSIVE. 
 
 It may be affirmed, in the second place, that, to constitute a 
 valid and effectual adverse possession, the possession must be hos- 
 tile in its inception. This principle has-been incidentally men- 
 tioned before, but it is of sufficient importance to be laid down as 
 a distinct point. Ko possession can be adverse, except the person 
 in possession holds for himself, to the exclusion of all others, and 
 under a claim of title which is entii-ely antagonistic to that of 
 the true owner. The claim of title must be adverse to that of the 
 claimant, and not in any manner subservient to the title of the 
 latter. Indeed, it has been declared by high judicial authority, 
 that, whenever an adverse possession is relied on, there must be 
 proof of an actual ouster, and that the presumption of an ouster 
 
POSSESSION MUST BE HOSTILE. 875 
 
 from circumstances will not be deemed sufficient. An entry by 
 one man oti the land of another is an ouster of the legal possession 
 arising from the title, or not, according to the intention with which 
 it is done ; if made under claim or color of right adverse to the 
 legal title, it is an ouster ; otherwise it is a mere trespass ; in legal 
 language, the intention guides the entiy and fixes its character. 
 Tlie doctrine of adverse possession is to be taken strictly, and not 
 to be made out by inference, but by clear and positive proof. 
 Every presumption is in favor of possession in subordination to 
 the title of the true owner. An entry adverse to the lawful owner 
 is not to be presumed, but must be proved. And, to make the 
 possession of a party a bar in the action of ejectment, strict proof 
 is necessary that it was hostilein its inception. {Brandt v. Ogden, 
 1 Johns. E. 156. Jachson v. Sharp, 9 ib. 163. Jackson v. Parker, 
 3 Johns. Cases, 124. Guy v. Moffitt, 2 Bibb's E. 507. MoGee v. 
 Morgan, 1 Marsh. E. 62.) 
 
 One of the cardinal rules which apply to acts of limitation gen- 
 erally, and which has been I'ccognized in the courts of England, 
 and in all others where the rules established in those courts have 
 been adopted, is,, that possession, to give title, must be adversary , 
 and it cannot be adversary unless it is hostile to the true title. 
 Said Chief Justice Marshall : " To allow a diffijrent construction 
 would be to make the statute of limitations a statute for the 
 encouragement of fraud — a statute to enable one man to steal 
 the title of another by professing to hold under it. No laws admit 
 of such construction." .{Eirh v. Smith, 9 "Wheat. E. 241, 288.) 
 And it has rec/ntly been held by the supreme court of Illinois, 
 that an adverse possession sufficient to defeat the legal title, where 
 there is no paper title, must be hostile in its inception, and is not 
 to be made out by inference, but by clear and positive proof. And 
 further, that the possession must be such as to show clearly that 
 the party claims the land as his own, openly and exclusively. 
 {Jackson v. Birner, 48 111. E.) 
 
 It has been held that a possession taken under a grant from the 
 French Canadian government, before the conquest of Canada by 
 the British, of land in the state of New York, cannot be deemed 
 a possession in hostility to any private or individual right, and 
 must be considered as held in subordination to title conveyed by a 
 patent of the state. {Jackson v. Waters, 12 Johns. E. 365. And 
 . vide Jackson v. Ingraham, 4 ib. 163.) 
 
876 LAW OF AOVEBSE EKJOTMENT. 
 
 "Where the party did not originally enter into the possession of 
 the land nnder a title hostile to the title of the owner, it will be 
 intended that he entered under his title. {JacJcson t. Thomas, 16 
 Johns. E. 292.) But, as it has been before intimated, if a man 
 enters on land, without claim or color of title, and no privity 
 exists between him and the real owner, he may afterward acquire 
 such a title to the land as the law will, prima facie, consider a 
 good title, and from that moment his possession becomes adverse. 
 Although the possession of the party was not originally either 
 hostile or in subservience to the true title, from the moment be 
 acquired a colorable title, and claimed under it, tbat moment his 
 possession became hostile to the title of the true claimant. Spen- 
 cer, C. J., said : " The principle, however, that the possession 
 must in its inception be adverse, and continue so, is not well 
 understood. In those cases in which that observation occurs, 
 nothing had happened to change the character of the first posses- 
 sion, and that was considered as denoting quo anlmo the posses- 
 sion was held after the first entry." {Jackson v. Thomas, supra. 
 And vide Jackson v. Frost, 5 Cow. E. 346.) In all cases, how- 
 ever, where a party is in possession of lands in privity with the 
 rightful owner, nothing short of an open and explicit disavowal 
 and disclaimer of a holding imder that title, and assertion of title 
 in himself, brought home to the owner, will satisfy the law. 
 Short of this, the party will still be regarded as holding in sub- 
 serviency to the rightful title. {Floyd v. Mintsey, 7 Eich. E. 
 181.) There are authorities maintaining the doctrine, that a 
 party in possession of lands confessedly in subordination to the 
 title of the owner is incapable in law of imparting, by any act of 
 liis own, an adverse character to his possession ; and that, in order 
 to deny or dispute the title, he must first surrender the possession, 
 and place the owner in the condition in which he stood before the 
 possession was taken under him. This doctrine was supposed to 
 govern the rights of trustee and cestui que trust, landlord and 
 tenant, vendor and vendee, tenants in common, and the like, and 
 that no lapse of time would lay a foundation for a statute bar to 
 the right of entry by reason of an adverse possession between par- 
 ties standing in this relation, or any others of like privity. The 
 law, however, has been settled otherwise. The trustee may dis- 
 avow and disclaim his trust ; the tenant the title of his landlord 
 after the expiration of his lease ; the vendee the title of his vendor 
 
POSSESSION MUST BE HOSTILE. 877 
 
 ; after breach of the eontract ; and the tenant in common the title of 
 I 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 com- 
 menced is in the degree of proof required to establish the adverse 
 character of the possession. As that was taken and held in sub- 
 serviency to the title of the real owner, a clear, positive and con- 
 tinued disclaimer and disavowal of the title, and assertion of an 
 adverse right, and to be brought home to the partj', are indis- 
 pensable before any foundation can be laid for the operation of 
 the statute of limitations. Otherwise, the grossest injustice might 
 be practiced ; for, without such notice, the owner of the land 
 might well rely upon the fiduciary relations under which the 
 possession was originally taken and held, and upon the subordi- 
 nate character of the possession as the legal result of those rela- 
 tions. The statute, therefore, does not begin to operate until the 
 possession, before consistent with the title of the real owner, 
 becomes tortious and wrongful by the disloyal acts of the tenant, 
 which must be open, continued and notorious, so' as to preclude 
 all doubt as to the character of the holding, or the want of knowl- 
 edge on the part of the owner. If he then neglect to enforce his 
 rights by action within the period fixed by the statute, the loss, as 
 in every other case of the kind, is attributable to his own laches, 
 and not to the law. 
 
 In an action of ejectment brought in the circuit court of the 
 United States for the eastern district of Pennsylvania, to recover 
 land situated in that state, in which the question of adverse pos- 
 session was directly involved, the judge charged the jury, that 
 " a trustee of any description may disavow and disclaim his trust, 
 though it is in tlie utmost bad faith, or in violation of his express 
 agreement, from which time his possession of lands, money or 
 chattels, held under an original trust, becomes adverse, so as to 
 bar an action of account after six years, or an ejectment in 
 twenty-one years after notice of the disavowal, disclaimer and 
 adverse possession is given to the person entitled to the benefit of 
 the execution of the trust. * * * That notice of the dis- 
 claimer puts the true owner under the same obligation to reclaim 
 the possession within the fixed period, as if no trust had ever 
 existed ; and it matters not whether the trust began by the volun- 
 
878 LAW OF ADVERSE EKJOTSIENT. 
 
 tary act of the trustee, or the law made him a trustee against his 
 ■will, as the result of his situation or conduct ; " and the supreme 
 court of the United States, on writ of error, sustained the charge of 
 the judge. {Zdler's Lessee v. Eokert, 4 How. U. S. E. 289.) This 
 doctrine, however, cannot be said to interfere, in the least, with the 
 rule that a possession to be adverse must be hostile in its incep- 
 tion. In those cases last referred to, the party may be said to 
 have held possession under diiferent claims, at different dates, the 
 last of which was hostile, and hence adverse, and the first was in 
 subservience to the true title, and not adverse. 
 
 Where one makes a contract to have a deed, though he enter 
 into possession of the land described by it, he is not in a situation 
 to hold adversely, until the condition upon which he contracts to 
 have his deed is fuliilled ; for the simple reason that such a pos- 
 session is not hostile in its inception. To illustrate : One Dyer 
 made a contract for land with the agent of the proprietors in 1792, 
 and entered under it. In 1794 he received his deed. In 1796 he 
 sold a part of it. to the defendant. It appeared that he took pos- 
 session, under his contract, of land which the deed did not cover, 
 and the defendant sought to retain it, on the ground of adverse 
 possession. The possession taken under Dyer's contract was held 
 not to be adverse on several grounds. But, among others, the 
 court say, the agreement made by Dyer with the agent " did not 
 put him in a situation to commence holding adversely, until he 
 performed the condition. The land still belonged to the proprie- 
 tor of the township. "Whether he ever would perform, was con- 
 tingent. He entered on the lot, it is true, but it was necessarily 
 subject to the right of turning him off, if he neglected to make 
 full payment. The possession, therefore, when taken, had not the 
 characteristics to constitute it adverse. It was not hostile in its 
 inception." (Jackson v. Camp, 1 Cow. R. 605.) A possession and 
 claim of land, under an executory contract of purchase, is in no 
 sense adverse, as to the one with whom the contract is made. But 
 it seems, that, when one enters under a contract for a deed with 
 one party, and afterward takes a deed from another party, his pos- 
 session from this time is adverse to the first vendee, and, if con- 
 tinued the statutory period, will bar his entry. [Jaclcson v. John- 
 son, 5 Cow. R. 74. And vide Jackson v. Bard, 4 Johns. E. 231.) 
 After performance of a contract of purchase, and an equitable title 
 to a deed of the premises acquired, thpre is no goo*d reason why 
 
POSSESSION MUST BE SOSTILE. 879 
 
 tlie vendee's possession may not tecome advei'se to liis vendor ; 
 but wlietlier it be so in fact, in such cases, must depend upon the 
 circumstances of each particular case. {Briggs v. Prosser, 14 
 Wend. R. 227,) Indeed, an agreement for a conveyance, the con- 
 sideration being paid, has been held to be tantamount to a deed, 
 as a foundation for an adverse possession. (La Fromhois v. 
 Jackson, 8 Cow. R. 589. ClappY. Bromagham, 9 ib. 530.) And 
 one entering under an executory contract of purchase may always 
 hold adversely, as against all persons but his vendor. ( Whitney 
 V. Wright, 15 Wend. R. 171.) But the possession of the vendee 
 cannot become adverse to the vendor, at least until after perform- 
 ance in full by him, and then, it seems, only upon the presumption 
 that a conveyance has been given. If there has been full per- 
 formance by a vendee, however, a conveyance may be presumed 
 after the statutory limitation has elapsed, the vendee continfiing in 
 possession. ( Vrooman v. Shepherd, 14 Barb. R. 441. And vide 
 Briggs v. Prosser, 14 Wend. R. 228.) 
 
 It has been held that a license given by the owner of the bank 
 ■ of a river above tide-water, to abut a dam built across such river to 
 the bank owned by him, is a perfect answer to a claim of adverse 
 possession set up by the party obtaining such license, or by a pur- 
 chase?- from him, although the purchase be made without notice of 
 such claim. It is thought to be going quite far enough to say tliat' 
 a squatter, a man presumptively holding in privity with the true 
 owner, may raise an adverse possession in his grantee by an abso- 
 lute conveyance. Such an act may be received in evidence to 
 overturn the presuiription ; and that is doubtless the only principle 
 on which even the naked possessor can work an ouster by his deed 
 to another. In the case of a license, there is no room for presump- 
 tion, any more than though the licensee had taken a lease from the 
 owner, and the possession of the owner can no more be disturbed 
 by any adverse act of the person holding the license than if he 
 were a lessee. In both cases his possession is the possession of the 
 true owner, and his grantee steps into the shoes of his grantor ; he 
 takes cum onere. A leaseto his ^grantor is a lease to him, and so 
 of a license ; so of every thing by which the grantor has incum- 
 bered or qualfiied his estate ; and hence no person holding land 
 tinder a license from the true owner can set up an adverse posses- 
 sion against such owner, and the grantee of the licensee occupies 
 the same situation, in this respect, as his grantor. [Zuce v. Carle]/, 
 
880 LAW OF ADVERSE ENJOYMENT. 
 
 24 "Wend. E. 451. Brandter v. Marsliall, 1 Gaines' E. 394.) In 
 a word, where one, in pursuance of a license, enters upon another's 
 land, and constructs a dam and canal, or any similar erection, and 
 keeps the same in repair, there is no adverse possession ; and there 
 can be, in such case, no presumption of a grant arising from lapse 
 of time ; and the same rule will hold good when the grantee of the 
 licensee attempts to avail himself of an adverse possession, for the 
 reason that a license is a merely personal right, and is not suscep- 
 tible of conveyance. {Bdbcoch v. Utter, 32 How. Pr. E. 439. Same 
 Case, 1 Keyes' E. 397.) 
 
 From what has been said, it is quite obvious that there can be no 
 adverse possession as between landlord and tenant, so long as the 
 tenancy continues. This principle is well established. The title of 
 the lessee is, in fact, the title of the lessor. He comes in by virtue of 
 it, holds by virtue of it, and rests upon it to maintain and justify his 
 possession. He professes to have no independent right in himself, 
 and it is a part of tlie very essence of the contract under which 
 he claims that the paramount ownership of the lessor shall be 
 acknowledged during the continuance of the lease, and that posses- 
 sion shall be surrendered at its expiration. He cannot be allowed 
 to controvert the title of the lessor without disparaging his own, 
 and he cannot set up the title of another without violating that 
 contract by which he obtained and holds possession, and breaking 
 that faith which he has pledged, and the obligation of which is 
 still continuing, and in fall operation. Under these oircumstanees 
 it is very clear that, so long as the relationship of landlord and 
 tenant exists, the possession of the tenant cannot be hostile to the 
 title of his landlord, and hence, that no adverse possession can arise 
 in such case. It is well settled by the cases that a tenant cannot, 
 while occupying and enjoying the premises under his lease, origin- 
 ate a possession hostile or adverse to his landlord. Nor can he, 
 daring the same period, continue an adverse possession previously 
 commenced. By taking a lease from the landlord, and holding 
 under it, he acknowledges the landlord's title, and right to convey, 
 and will be deemed to have waived any previous and imperfect 
 rights which he has already acquired under a prior, incipient 
 adverse possession. {Corning v. The Troy Iron and Nail Factory, 
 34 Barb. E. 485. Same Case, 22 How. Pr. E. 217. Tyler v. 
 Eeidorn, 46 Barb. E. 439.) 
 
 But, although a party entering into possession of lands under a 
 
POSSESSION MUST BE HOSTILE. 881 
 
 lease for j'ears cannot hold adversely to his grantor while that rela- 
 tion continues, yet that disability will be removed by a subsequent 
 grant in fee to him, and it seems that the reservation of quit-rent 
 does not prevent the grantee from claiming adversely. {The People 
 V. Trinity Churoh^ 22 N. Y. E. 44. The People v. Van Rensselaer, 
 9 ib. 291, 344.) And the rule that, when the relation of landlord 
 and tenant exists, a conveyance by the latter of the demised prem- 
 ises cannot operate as the basis of an adverse possession, so as to 
 bar the former of his ejectment, means the conventional relation 
 of landlord and tenant, when some rent or return is in fact reserved 
 to tlie former, not a relation arising from mere operation of law ; 
 as when one makes a grant, and by the omission of the technical 
 word heirs, an estate for life only passes. In such ease, after the 
 death of the tenant for life, an adverse possession may commence 
 running in favor of those who enter and claim in fee under him, 
 which, after the statutory limit, will bar all claim of the reversioner 
 and his heirs. {Jackson v. Marsen, 7 Cow. R. 323.) The pre- 
 vailing doctrine, however, would seem to be, that, as against a 
 reversioner, there cannot be an adverse possession. An adverse 
 possession, as . a general rule, can only be had against a person 
 entitled to the possession. {Clarke v. Hughes, 13 Barb. E. 147.) 
 It has been held that a lease, granting the privilege of turning 
 a stream of water from its course, and using the same, executed 
 long after the lessor has conveyed all his interest in the land, by 
 warranty deed with full covenants, is absolutely void as against 
 the grantee of tlie land, and those claiming under him ; and will 
 not create the relation of landlord and tenant, as between a subse- 
 quent grantee of the land and an assignee of the lease. But, while 
 such a lease will not constitute or confer any title or right of pos- 
 session, it is sufSeient to lay the fox;ndation of an adverse pos- 
 session. It is adverse to the title of the grantee of the land, and 
 bj' making it, the lessor asserts a right to the thing granted ; which 
 assertion or claim will pass from him to the lessor, and thence to 
 an assignee of the lease, and, if accompanied by actual enjoyment, 
 is as effectual as an adverse claim on the part of the assignee, as 
 though it embraced the entire estate in the land, and if the 
 grantee of the land, and those claiming under him, acquiesce in 
 such adverse claim, or in an adverse possession originating prior 
 to the execution of the lease, for more than the statutory period, 
 they will be barred by it. ( Wilklow v. Law, 37 Barb. E. 244.) 
 Ill 
 
882 ZAW, OF ADVERSE ENJOYMENT. 
 
 One tenant in common may oust liis co-tenant, and hold in 
 severalty ; but a silent possession, accompanied with no act which 
 can amount to an ouster, or give notice to his co-tenant that his 
 possession is adverse, ought not to be construed into an adverse 
 possession. {McClung v. Boss, 5 Wheat. R. 116.) But the pos- 
 session of a tenant in common, eo nomine, will never bar his 
 companion. When a tenant in common enters and takes exclu- 
 sive possession generally, he will be presumed to be in as a tenant 
 in common ; yet he may enter adversely and claim in severalty, 
 and then the statute of limitations will run in his favor and 
 against his co-tenants. Though one enter as the committee of a 
 lunatic, a subsequent sale to another by such committee, and 
 claim of the title by the purchaser absolutely, changes the charac- 
 ter of the possession, and makes it adverse, and the entry of one 
 of several heirs, claiming the whole, and denying possession to liis 
 co-heirs, and selling the land to a stranger, constitutes a possession 
 adverse to the co-heirs. {Clapp v. BromagJiam, 9 Cow. E. 530; 
 Iticard v. Williams, 1 Wheat. E. 59.) " That one tenant in com- 
 mon may oust his co-tenant, and hold in severalty, is not to be 
 questioned. But a silent possession, accompanied with no act 
 that can amount to an ouster, or give notice to his co-tenant that 
 his possession is adverse, ought not, we think, to be construed into 
 an adverse possession." {Bradstreet v. Huntington, 5 Peters' E. 
 401, 439. Yid6 Peyton v. Stith, lb. 485. Barr v. Gratz, 4 
 Wheat. 213.) An ouster by a tenant in common of his co-tenant 
 does not differ in its nature from any other ouster, and in no 
 respect except in the degree of evidence required. In other cases 
 the assumption of ownership is more clearly adverse to all the 
 world. In the case of a tenant in common such assumption, and 
 the acts which indicate it, may be consistent witli the acknowledg- 
 ment of the right, of the co-tenant. But, if an actual intent to 
 exclude the co-tenant from the enjoyment of the property be shown 
 the possession is adverse. {Newell v. Woodruff, 30 Conn. E. 492.) 
 And an adverse and exclusive possession of land for a period equal 
 to the statutory limit is a good bar to a writ of entry to recover 
 the same, altliough the demandant's title may have been derived 
 through mesne conveyances from the tenant. {Stearns v. Sender- 
 sop, 9 Gush. E. 497.) 
 
 The rule is well settled that the possession of a cestui que trust 
 however long continued, will not displace the legal" title of the 
 
POSSESSION' MUST BE EXCLUSIVE. 883 
 
 trustee, unless there is a distinct denial of such title and a posses- 
 sion wholly inconsistent therewith. The presumption is, that the 
 possession of a cestui que trust is permissive, and not hostile to 
 the title of the trustee, and therefore not adverse. ( Whiting v. 
 Whiting, i Gray's R. 241. Newton v. McLean, 41 Barb. E. 285. 
 Yide Boone v. Chiles, 10 Peters' E. 177.) An adverse right to 
 an easement cannot grow out of a mere permissive enjoyment for 
 any length of time. Such a possession is in no sense hostile to 
 the title of the true owner, and hence cannot be adverse. {First 
 Parish in Gloucester v. Beach, 2 Pick. E. 60, note. Medford v. 
 Pratt, 4 ib. 222, 228. Baher v. Berton, 12 ib. 1S4.) And indi- 
 viduals acquire no right of possession adverse to the owner of the 
 soil, by long use of that part of a public road which is not occupied 
 as a traveled path. {Parher v. Framingham, 8 Mete. E. 260. 
 Thomas v. Marshfield, 13 Pick. E. 240.) 
 
 When a tract of land, which is attached to an academy, is pur- 
 posely left uninclosed, and an owner of adjoining land passes over 
 such tract in common with those for whose use it is appropriated, 
 and more frequently than any other person except them, such 
 passing is to be regarded as permissive and not hostile, and con- 
 sequently not adverse ; another objection to such an enjoyment 
 being adverse is that it is not under a claim of right. {Kilhurn v. 
 Adams, 7 Mete. E. 33. And vide Putnam v. Bowker, 11 Cush. 
 E. 542.) But the rule is peremptory that a possession must be 
 hostile to the true owner before the statute of limitations can 
 operate, in order that the owner may be put on inquiry that his 
 rights are challenged. The character of the enjoyment, as being 
 by indulgence or permission of the owner, may be shown either by 
 writing, or by the acts or relations of the parties, or by the verbal 
 admissions of the claimant or party enjoying. {Sumner v. Tileston, 
 7 Pick. E. 198. Church v. Burghardt, 8 ib. 327.) 
 
 It has been held that the possession of a father, after canceling 
 a deed he had taken in the name of his infant son, and obtaining 
 a new deed to himself, is adverse to the son. {Langworth v. Close, 
 1 McLean's E. 282.) 
 
 But, in the third place, it may be affirmed that, as a general 
 rule, to constitute a valid and effectual adverse possession, the pos- 
 session must be under a claim of the entire title. It must be such 
 as necessarily to exclude the idea of title in any other person. 
 " When a plaintiff has shown title, and the defendant relies on 
 
884 LAW OF ADVERSE ENJOYMENT. 
 
 possession, the idea of right is excluded ; the fact of possession, 
 and the quo animo it was commenced and continued, are the only 
 tests; and it must necessarily be exclusive of any other right. 
 This doctrine has often been repeated. * * * The aniino, 
 then, or the intent with which the entry is made, must be iona 
 fide an en try, believing, ingood faith, that the land_ia,his and he 
 has the title." {Livingston v. The Peru Iron Company^ 9 Wend. 
 E. 511.) If it appear that the title claimed is subservient to, and 
 admits the existence of, a higher title, the possession is not adverse. 
 {Smith V. Burtis, 9 Johns. E. 180. Jackson v. Johnson, 5 Cow. 
 E. H.) For example, where a son entered upon land belonging 
 to his father, as the land of the latter, and by his permission, and 
 continued to hold the premises in the hope that his father would 
 convey to him by deed, or devise to him by will, the supreme court 
 of New York held, that such an occupation lacked all the essential 
 attributes of an adverse possession, and could not have the effect 
 to avoid a deed from the father, nor would it, by a continuance 
 of twenty years and upward, ripen into a title. {Howard v. 
 Howard, Jr. 17 Barb. E. 663.) To constitute an adverse posses- 
 sion, it is not necessary that the title under which the party claims 
 should be a good one, but it must be under color and claim of title 
 exclusive of any other right ; and the possession must be adverse 
 to the one who is entitled to the possession. {Roseboom v. Yan 
 Vechten, 6 Dehio's E. 424, 425, 426. Clarke v. Hughes, 13 Barb. 
 E. 147. Mosher v. Tost, 33 ib. 277.) 
 
 Possession of lands by one entitled to possession in right of his 
 wife, or as tenant by the curtesy, will be presumed, in the absence 
 of proof to the contrary, to be held by virtue of such right, 
 and not adversely, although the occupant holds a void deed 
 purporting to give him a title in fee. {Gorwin v. Corwin, 6 N. Y. 
 E. 342.) 
 
 Any possession of land, which is accompanied by the recognition 
 of a superior title still existing, cannot be adverse to that title. 
 But where a person takes possession under a parol agreement for 
 a purchase, and pays for the land, or purchases it and takes a deed 
 which is defective, the possession of the purchaser which inures is 
 prima facie under a claim of title in himself, and is therefore 
 adverse. {Griswold v. Butler, 3 Conn. E. 246. South School 
 District V. BlacTceslee, 13 ib. 227. French v. Pearce, 8 ib. 439. 
 Bryan v. Atwater,.5 Day's E. 181.) 
 
I'dSSBSSIOH' MUST BE EXCLUSIVE. 885 
 
 "Where it appeared merely that the defendant had been in pos- 
 f5ession of tlie land in question by virtue of a parol gift from the 
 owner, it was held by the supreme court of errors of the state of 
 Connecticut that liis possession was to be deemed constructively 
 to have been in subordination to the legal title, and therefore 
 under and not adverse to such owner. But where it further 
 appeared, that to the possession of the- defendant was superadded 
 the fact that it was exercised by him under a claim of title in liim- 
 self, it was held that this fact rebutted the presumption that ho 
 occupied under the owner or any other person, and showed, there- 
 fore, that the possession was adverse. And it was declared that 
 an entry and possession by a party, under a claim of title in him- 
 self, by virtue of a void grant, whether by parol or otherwise, is 
 not less adverse than if possession were taken and held without 
 an}' color of title whatever. [Comins v. Comins, 21 Conn. K. 413.) 
 
 The doctrine has been laid down by the supreme court of errors 
 of the state of Connecticut, that when a party by means of a dam 
 on Iiis own land has thrown the water back upon the land of the 
 adjoining owner, and has continued to do so for the period 
 prescribed by the statute of limitations, without objection on the 
 part of the latter, the law will presume a grant to the owner 
 of the dam of the right to flow the adverse party's land, because 
 it is not to be supposed he would have suffered such a continued 
 injury to his land without objection, unless the owner of the dam 
 had acquired the right. But it was held, that, when a riparian 
 proprietor has used a water privilege for more than the statutory 
 period, but in such a manner as to do other riparian proprietors 
 no injury and give them no right to interfere, the proprietor so 
 using the same acquires thereby no rights against such other 
 proprietors. The use of the water is entirely consistent with a 
 recognition of the title of the other proprietors, and cannot there- 
 fore be adverse. The use is not under a claim of the entire title, 
 but is consistent with, and subservient to, a higher title, and how- 
 ever long continued can never become adverse. {Parker v. 
 Hotchkiss, 25 Conn. E. 321.) The doctrine of adverse possession 
 is to be taken strictly. Such a possession is not to be made out 
 by inference, but by clear and positive proof. Every presumption, 
 is in favor of possession in subordination to the title of the true 
 owner. 'So title by such possession can be acquired unless the 
 party has the actual use and occupation of the land in the manner 
 
886 LAW OF ADVERSE ENJOTilENT. 
 
 prescribed by custom or by statute, nor unless the owner lias so 
 lost his possession that he can maintain an action to recover it. It 
 mnst be made to appear that the possession was under a claim or 
 color of title, hostile to the title of the true owner, and a claim of 
 the entire title. {Huntington v. Whaley, 29 Conn. E. 391. And vid& 
 Stevens v. lihinelander, 5 Tlobertson's R. 285. ^¥atson v. The 
 New Yorh Central Railroad Company, 6 Abb. N. S. E. 91.) The 
 general doctrine is, that possession is not deemed adverse unless 
 the occupant entered under claim of title exclusive of any other 
 right ; and sometimes the rule is enacted by statute. In the state 
 of New York, the supreme court recently held, that a grantee, by 
 accepting a deed containing an exception of certain lands pre- 
 viously sold and conveyed to another, and then entering into the 
 possession of the lands thus excepted, will be deemed in law to 
 have entered in subserviency to the title of the grantee of the 
 excepted land,- and to continue to hold in subserviency thereto, 
 unless he can establish the contrary, by some clear and unequivo- 
 cal act or claim of title in himself. {Sosseel v. WiGhham, 36 
 Barb. R. 386. And vide Fosgate v. Herkimer Manufacturing and 
 Hydraulic Company, 9 ib. 287. Same Case, 12 ib. 352.) There 
 are some exceptions to this doctrine by reason of the peculiar 
 phraseology of the statute, but, as a general rule, the possession of 
 land ft> be adverse must be under claim of the entire title. And 
 accordingly it has been held by the supreme court of the city of 
 Ifew York, that, when title is claimed to the same lands by differ- 
 ent parties, under conflicting grants from the same source, and 
 each grant is upon the condition that the grantee therein is 
 the true owner of certain adjacent lands, the possession of the 
 land in dispute by one of the parties, who is not'the true owner of 
 the adjacent lands, cannot be deemed an adverse possession, so as 
 to cause such possession to ripen into a title as against the other 
 grantee. {Towle v. Palmer, 1 Abb. R. N". S. 81. Same Case, 1 
 Robertson's R. 437.) And upon the same j)rinciple, the same court 
 held, that, where the corporation of the city of New York conveyed 
 the same premises to different parties, upon the condition that each 
 grant should be null and void, unless the grantee was the owner 
 of the adjacent lands, the grantee who did not own the adjacent 
 lands could not acquire title by possession under his grant alone, 
 as against the grantee who did own the adjacent lands. {Towle v. 
 tolan, 1 Rob. R. 473.) So, also, upon a similar principle, the 
 
P0SSJESSI01>r MUST BE EXCLUSIVE. 887 
 
 court of appeals of the state of New York held, that the grantees 
 of a portion /of a tract of land fronting on a road, nnder a deed 
 whicli reserved to the plaintiff's grantors a right of way over 
 BO much of said road a^ was within the premises in which the 
 easement was reserved, inclosed and occupied the road for more 
 than twenty years, during which time, the land of the plaintiff, 
 being wild and unoccupied, he had no occasion to assert his rigiit 
 of way, could not claim such possession to be adverse to the 
 plaintiff's right of way. {Smyles v. Hastings, 22 N. T, E. 217.) 
 ••As has often been asserted, it is not requisite that' the claim 
 under which a possession of land is commenced should be valid. 
 It is sufficient if the party " clearly, unequivocally and notori- 
 ously " claimed absolute title to the exclusion of all right, title or 
 interest in tlie true owner. It is wholly immaterial whether the 
 claim upon which an adverse possession is founded is made upon a 
 valid or void instrument ; nor indeed is it necessary, except in 
 cases of constructive occupancy, that the claim should be founded 
 upon any written instrument whatever. But the possession must 
 be under a claim of the entire title, and the same must be in open 
 hostility to the true title. ( Vide Ha/rpending v. The Reformed 
 Protestant Dutch Church, 16 Peters' E. 455. Ilunibert v. Trin- 
 ity Church, 24 Wend. R. 587. Clapp v. Bromagham, 7 Cow. R. 
 530. Bogardus v. Trinity Church, 4 Sandf. Ch. R. 633. Kent v, 
 Harcourt, 33 Barb. R. 491.) To constitute a possession adverse, 
 the party setting up the possession must, in making his entry 
 upon the land, act hona fide; he must rely on his own title; he 
 must believe the land to be his, and that he has title thereto, 
 although his title may not be rightful or valid. {Livingston v. 
 The Peru Iron Company, 9 "Wend. R. 511.) The actual posses- 
 sion and improvement of the premises, as owners are accustomed 
 to possess and improve their estate, without any payment of rent 
 or recognition of title in another, or disavowal of title in himself, 
 will, in the absence of all other evidence, however, be sufficient to 
 raise a presumption of his, the occupant's, entry and holding, as 
 absolute owner. {La Frornhois v. Smith, 8 Cow. R. 589.) 
 
888 LAW OF ADVERSE ENJOYMENT. 
 
 CHAPTEE L. 
 
 POSSESSION TO BE ADVEESE MUST BE MARKED BY DEEINITE BOTTNDA- 
 EIBS — WHEN A CONSTRUCTIVE POSSESSION MAY BE ADVERSE — 
 
 REQUISITES OF A CONSTRUCTITE POSSESSION RULE IN CASES OF 
 
 A MIXED POSSESSION. 
 
 Oftentimes the statute defines what the character of the occu- 
 pancy of lands, shall be, iu order to render the enjoyment thereof 
 adverse ; but, as a general rule, a possession to be adverse must be 
 marked by definite boundaries ; and where there is no claim of 
 title founded upon a written instrument, or a judgment or decree, 
 there must be & pedis possessio, an actual occupancy, or a substan- 
 tial inclosure of the lands, which is definite, notorious and certain, 
 to constitute an adverse possession. The inclosure, however, need 
 not be by an artificial fence or structure, for, if the land is fenced 
 on three sides, and the fourth is bounded by a ledge of rocks from 
 two to three hundred feet in height, such ledge will be deemed a 
 part of the inclosure, as much as though it were an artificial fence. 
 With such a boundary to his possession, no man would regard an 
 artificial fence as necessary. {Becker v. Van Vallcenhurgh, 29 Barb. 
 E. 319.) 
 
 In an early case before the old supreme court of the state of 
 New York, it was declared that to constitute an adverse possession 
 of land, not included in a grant of it, there must be a pedis pos- 
 session or substantial inclosure ; but that the inclosure need not be 
 by an artificial fence, or other erection. A river, a mountain or 
 continued ledge of rocks, or other natural obstruction, sufficient to 
 prevent the intrusion of cattle, is enough. In delivering the 
 opinion of the court, Woodworth, J., said : " The plaintiff is en- 
 titled to recover the small parcel of land lying between the two 
 acres and seventeen rods and the river, unless the deed from Palmer 
 to Jennings is inoperative, in this respect, by reason of an adverse 
 possession at the time it was executed. The boundaries in the 
 •defendant's conveyance do not include this parcel. He cannot, 
 therefore, rest on the ground of a good constructive possession, 
 but must make out a pedis possessio, or actual occupancy, with 
 claim of title. The adverse possession must be marked by a sub- 
 Etantial inclosure, and continued down, to render it available. 
 
POSSESSION MUST BE MARKED, 889 
 
 * * * From the whole of the evidence, I understand that the 
 small parcel was inclosed by a fence on all sides, excepting on the 
 northerly line, where it extended a part of the way only ; and at 
 that portion of the line where it did not continue, the high bank 
 served as a substitute. For the purpose of notoriety, as well as 
 good Imsbandi-y, this was a substantial inclosure. "Wliy require a 
 fence, when nature had formed a sufficient barrier to prevent the 
 intrusion of cattle? The defendant sufficiently marked the extent 
 of his possession. Suppose a lot of land is bounded on the .one 
 side by a navigable river, or a continued ledge of rocks, or a moun- 
 tain of difficult ascent or descent, and that the other sides are well 
 inclosed, would not this, with a claim of title, constitute an ad- 
 verse possession ? It certainly would ; because, in such a case, 
 every thing had been done that could reasonably be required to 
 protect the crop, or denote exclusive occupancy. The case before 
 us is analogous." {Jackson v. Halstead, 5 Cow. E. 216, 220, 221.) 
 
 By the eighty-iifth section of the code of New York, it is enacted 
 that, for the purpose of constituting an adverse .possession by a 
 person claiming title not founded upon a written instrument, or a 
 judgment or decree, land shall be deemed to have been possessed 
 and occupied in the following cases only : 1. Where it has been 
 protected by a substantial inclosure ; 2. Where it has been culti- 
 vated or improved. It has been held that the first clause of the 
 section was intended to provide that a party claiming to hold ad- 
 versely should protect his claim by tlie erection of a substantial 
 inclosure ; and the language employed means that he shall erect 
 an inclosure around' the land, without relying upon a remote fence 
 of a neighbor, inclosing that neighbor's land also. Although the 
 claimant may avail liimself of a fence upon the line, yet it was 
 not designed that a fence located far away from the premises, and 
 including other lands, should be used as a means of protection to a 
 claim of this character. It was also intended that the inclosure 
 should provide fixed, certain and definite boundaries of the claim 
 made, by which it might be designated, marked and known. It 
 must be an inclosure of the lot alone, upon the lines claimed by 
 the party, and not embracing premises adjoining, extending, in 
 part, a great distance from the lines. 
 
 It was further held by the court that, to constitute a compliance 
 with the second clause of the section referred to, the land must 
 not only be cultivated, but improved. Eeaping alone cannot bo 
 312 
 
890 LAW OF ADVERSE ENJOYMENT. 
 
 considered as cultivating; nor can the keeping up of a fence al- 
 ready made, mowing tlie grass and cutting brush, be deemed an 
 improvement within the meaning of the statute. The statute was 
 intended to provide for the ordinary cultivation and improvement 
 of lands in the manner in which they are usually occupied, used 
 and enjoyed by farmers, for agricultural purposes, by sowing, 
 ploughing and manuring, and by the erection of buildings, etc., 
 which may add to their value. {Doolittle v. Tice, 41 Barb. E. 181.) 
 
 In an action of ejectment, when it appeared that, at the time 
 of the defendant's entry, the premises were open and uninclosed 
 woodland, so that the person under whom the plaintitfs claimed 
 had no actual possession at that time, and that the only possession 
 he had was by taking wood and timber from the premises upon 
 several occasions and at distant intervals of time, and by inclosing 
 tlie premises, or some portion of them, and cultivating a crop for 
 a single season ; and that there had been no actual occupation of 
 any part of the premises, by the plaintiffs, nor any continued acts 
 of possession by them, since the year 1816, the court held that, in 
 the absence of any deed, or paper title, the plaintitfs could not 
 recover ; and it was declared, that, to make out an adverse posses- 
 sion of lands, so as to vest the title, where there is no deed 
 or other written instrument, there must be a real, substantial 
 inclosure — an actual occupancy — jpedis ^ossessw,\{\\\(^ is defi- 
 nite, positive and notorious; or the premises must have been 
 usually cultivated or improved. Certainty, publicity and noto- 
 riety are the essential elements of an adverse possession ; and if 
 it be wanting in these particulars, it cannot have the effect to vest 
 the title. {Lane v. Gould, 10 Barb. E. 254. And vide Doe v. 
 Camjp'bell, 10 Johns. E. 477. Jackson v. Wheat, IS ib. 338.) 
 
 So, in a recent case, the supreme court of ITew York hel^l, that 
 it was erroneous to charge the jury, in an action of ejectment, 
 that an adverse possession by the defendant of the land on 
 and adjacent to the bank of a stream of water, for a, sufficient 
 time to mature a title, will be carried constructively and by 
 operation of law to the center of the stream, without any actual 
 adverse occupancy of the land under water in the stream Itself. 
 And it was declared that adverse possession should not be permit- 
 ted to prevail beyond the limits of the actual possession ; and 
 such possession must be marked by distinct boundaries ; and to 
 give it effect there must be actual occupancy, measured by a dis- 
 
POSSESSION MUST BE MARKED. 891 
 
 tinct, visible and marked, and not by a presumptive or construct- 
 ive, possession. Hogeboom, J., said : "I think this view is not 
 effectively answered by the argument that adverse possession pre- 
 sumes a grant, and a grant must be presumed to extend to the cen- 
 ter of the stream. If an adverse possession is founded upon the 
 idea of a grant, which I do not admit, and which, if countenanced 
 by the earlier cases, ought, I think, to be repudiated, because it is 
 at known variance with the actual truth, the grant must, I think, 
 be presumed to be only coextensive witli the actual limits of 
 the adverse possession — a grant with boundaries corresponding 
 with exterior lines of the actual possession. Such a description in 
 a grant would not carry the land to the center of the stream, but 
 only to the shore; for it is undeniable that a deed bounded 
 expressly upon the line of the shore would altogether exclude the 
 land under water. The reason why a deed bounded generally 
 upon a stream of water carries you to the ceijter is, that the 
 stream thus defined is supposed to be a line without width, in tlie 
 center of the sti-eam, and not a space, having width and extent, as 
 appearing upon the face of the earth. It is because the deed 
 itself, as properly read and construed, by the force of its terms 
 bounds the land by the center line, and not by the shore line of 
 the stream." {Corning v. The Troy Iron and If ail Factory, 34 
 Barb. R. 529, 532, 533. And vide Adams v. Elvers, 11 ib. 390. 
 Demeyer v. Legg, 18 ib. 14. Hammond v. McLachlan, 1 Sand. 
 S. C. E. 323. Herring v. Fisher, 1 ib. 344. Jackson v. Hatha- 
 way, 15 Johns. E. 447. Hooker v. Utica and Minden Company, 
 12 "Wend. 371. Imlay v. Union Branch Railroad Company, 26 
 Conn. E. 249.) 
 
 But it must be considered as settled, if a series of decisions for 
 sixty years can settle a question, that when the occupant of land 
 produces no written title, but relies solely on possession with an 
 assertion of title, he can retain so much only as he had under 
 actual improvement and within a substantial inclosure; and the 
 decisions are that the possession must be marked by distinct 
 boundaries. {Yide Brandt v. Ogden, 1 Johns. E. 156. Jackson 
 v. Waters, 12 ib. 3G5. Jackson v. Warford, 7 "Wend. E. 62. 
 Jackson v. Halstead, 5 Cow. E. 216. Corning v. Troy Iron and 
 Nail Factory, svpr a.) 
 
 In a case before the supreme court of the United States, involv- 
 ing the question of adverse possession under the statute of Ohio, 
 
892 LAW OF ADVERSE ENJOYMENT. 
 
 Mr. Justice BaHwin, among other things, said : " It is well settled 
 that, to constitute. an adverse possession, ther^ need not be a fence, 
 building or other improvement made; it suffices for this purpose 
 that visible and notorious acts of ownership are exercised over the 
 premises in controversy for twenty-one years after an entry under 
 claim and color of title. So much depends on the nature and 
 situation of the property, the uses to wliich 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 eases. But it 
 may with safety be said, that where acts of ownership have been 
 done upon land, which from their nature indicate a notorious 
 claim of property in it, and are contin'ued without interruption 
 or an adverse entry by him for twenty-one years, such acts are 
 evidence of an ouster of a former owner and an actual adverse 
 possession against him, if the jury shall think that the property 
 was not susceptible of a more strict or definite possession than 
 had been taken and lield. Neither actual occupation, cultivation 
 or residence are necessary to constitute actual possession, where 
 the property is so situated as not to admit of any permanent use- 
 ful improvement, and the continued claim has been evidenced by 
 public acts of ownership such as he would exercise over property 
 which he did not claim." (Ewing v. Burnet, 11 Peters' K. 41, 
 52, 53.) 
 
 And, in a still earlier case before the supreme court of the 
 United States, involving the question of adverse possession under 
 tlie statute of Kentucky, it was declared that the assumption that 
 there can be no possession to defeat an adverse title, except in one 
 or other of these ways, that is, by an actual residence or an actual 
 -inclosure, is a doctrine wiioUy irreconcilable with principle and 
 authority. Nothing can be more clear than that a fence is not 
 indispensable to constitute possession of a tract of land. The 
 erection of a fence is nothing more than an act presumptive of an 
 intention to assert an ownership and possession over the property. 
 But there are many other acts which are equally evincive of such 
 an intention of assei-ting such ownership and possession — such as 
 entering upon land and making improvements thereon, raising a 
 crop of corn, felling and selling the trees thereon under color of 
 title. And it was held that an actual residence on tlio land or a 
 pedis positio of it by an inclosure, was not absolutely necessary 
 to constitute a possession adverse. {Ellicott v. Pearl, 10 Peters' 
 
FOSSESSION MUST BE MARKED. 893 
 
 R 412.) And this is in accordance with the doctrine of the state 
 courts of Kentucky,, wherein it has been declared that " it is well 
 settled that there may be a possession in fact of land not actually 
 inclosed by the possessor." {Moss v. Scott, 2 Dana's K. 275.) But 
 this questiop depends very much upon the provisions of the statute 
 of limitations ; and what may constitute an effective adverse pos- 
 session in one state may not be sufficient in another. There are 
 rules, however, of quite general application, and, where there seems 
 to be an exception, it will be safe to refer to the local statute of 
 limitations, given in previous chapters of this work. When an 
 entry is made upon lands under color of title, the same may be 
 held by a constructvue possession; but, if made under a simple 
 claim of title, the possession must be actual, a pedis possessio, 
 definite, positive and notorious. ( Vide Bailey v. Irley, 2 Nott & 
 McCord's R. 343. Gibson v. Martin, 1 Harr. & Johns. E. 545. 
 Jloy V. Ferry, 1 Litt. R. 171. Shearer v. Clay, lb. 260. Smith 
 V. JSfowells, 2 ib. 160. Mite's Heirs v. Shrader, 3 ib. 456. Brax- 
 dale V. Speed, 1 Marsh. R. 106. Smith t. Mitchell, Ib. 207. 
 SkyWs Heirs v. King's Heirs, 2 ib. 585. Anderson v. Turner, 
 3 ib. 133. Bodley v. CoghiWs Heirs, Ib. 615. Moore y. Far- 
 row, Ib. 49. Trotter v. Cassady, Ib. 366. Dooliitle v. Lindsey, 
 2 Aikin's R 155.) 
 
 ' Said the late Chancellor Kent, in an early case : " 'YWq possession 
 fence, &% it was termed, which was run round the large tract in 
 1774, I do not consider as an adverse possession, sufficient to toll 
 the right of entry of the true owner, after twenty years. This 
 mode of taking possession is too loose and equivocal. There must 
 be a real and substantial iuclosure, an actual occupancy, &possessio 
 pedis, which is definite, positive and notorious, to constitute an. 
 adverse possession, when that is the only defense, and is to counter- 
 vail a legal title." The fence referred to by the learned judge 
 was a tree and slash fence. (JacTtson v. Hardenhirg, 2 Johns. R. 
 234.) And a similar fence has been declared insufficient in Massa- 
 chusetts. {Colburn v. Hollis, 3 Mete. R. 125.) So also the same 
 doctrine is recognized in Eavf Hampshire. {Hale v. Gliddon, 10 
 IS". PI. R. 397.) 
 
 In an early case in Maryland, Euchanan, J., delivering the 
 opinion of the court, said : " This is a case of two conflicting claims, 
 in which the pretensions of both' parties are set out. The lessees 
 of the plaintiff, with title, having possession by inclosure and culti- 
 
894 LAW OF ADVERSE ENJOYMENT. 
 
 vation of a part of a tract of land in dispute, claiming the -whole ; 
 and the defendant, without title, having possession of a part of the 
 same tract of land, with the use (by cutting timber, etc.) of other 
 parts not inclosed, as to that part of the land which was in the 
 possession of the defendant and his ancestor, Charles Cheney, by 
 actual inclosure for more than twenty years next preceding the 
 bringing of this suit, the plaintiff is bound by the act of limita- 
 tions ; but not as to the parts used by the defendant exterior to 
 the inclosure." {Cheney v. Ringgold, 2 Ilarr. & Johns. R. 87.) 
 Tlie doctrine seems to be that, Avhen an usurper enters on land, he 
 acquires possession, inch by inch, of the part which he occupies, 
 and that a mere naked possession without color of title is adver- 
 sary only to the extent of actual inclosures, which must be definite 
 and notorious. {Hammond v. Warfield, 2 Harr. & Johns. R. 151. 
 Hall V. Gitting^s Lessee, lb. 380. Jackson v. Camp, 1 Cow. E. 
 605. Prevosfs Heirs v. Johnson, 9 Mart. E. 123.) And the court 
 of appeals of Maryland have declared that " when one claims by 
 possession alone, without showing any title, he must show an 
 exclusive possession by inclosure, and his claim cannot extend 
 beyond this inclosure." {Davidson''s Lessee v. Balcer, 3 Harris & 
 McHenry's E. 621.) The same doctrine is recognized in several 
 others of the States. {Vide Smith v. Hosmer, 7 N. H. E. 436, 
 Watrous v. Southioorth, 5 Conn. E. 305. Hatch v. Yermont Cen- 
 tral Railroad, 28 Vt. E. 142. Robinson v. Douglas, 2 Aikin's E, 
 364. Bell V. Langworth, 6 Ind. E. 273.) And in Maryland it 
 has been held that the inclosure must be complete, and that one 
 of three sides only is insuflicient. {Armstrong v. Risteau, 5 Md. 
 E. 256.) But ia Missouri, it has been held in accordance with the 
 , rule declared in New York, that a natural barrier, for example a 
 ledge of rocks, is equivalent to a fence. {St. Louis v. Gorman, 29 
 Mo. E. 593.) And in that state, title by adverse possession can 
 be sustained in ao case, except for lands actually possessed and 
 occupied by the party claiming the title. {Eiiowlton v. Smith, 3 
 Mo. E. 507. BeGraivv. Taylor, 37 ih.S-iO. But vide Carondelet 
 V. Timon, lb. 408.) Eesidence is not usually necessary to make 
 an adverse possession, land maybe inclosed and cultivated without 
 residing on it, and the possession is as much adverse in one case as 
 in the other. But possession of land, so as to bar the title of the 
 rightful owner, must be an actual possession of the part in dispute. 
 Cultivation of a part of the tract, not within the bounds of the dis- 
 
CONSTRUCTIVE POSSESSION, WHEN ADVERSE. 895 
 
 puted part, is not sufficient to authorize tlie bar of the statute. 
 {Napier's Lessee v. Simpson, 1 Tenn. R. 453. , Johnston v. Irwin, 
 3 Serg. & Eawle's R. 202.) But in some of the states, as in Ken- 
 tucky, the statute requires a settlement and residence on the land 
 in order to constitute a possession adverse as against an actual 
 settler, and when such is the law, clearing and cultivating the land 
 will not answer the purpose. {Hoy v. Perry, I'Litt.'R.lll. SkyWa 
 Heirs V. King's Heirs, 2 Marsh. R. 385. Smith v. Mitchell, 1 ib. 
 207. And vide MoCarty v. Fourcher, 12 Mart. E. 11. Watts v. 
 Oriswold, 20 Ga. E. 732.) The pa_yment of taxes assessed upon 
 land will not constitute a possession, although in some of the 
 states it is regarded as evidence of a claim and the extent of such 
 claim. ( Vide Sorter v. Willing, 10 Watts' E. 142. Naglee v. 
 AUbright, 4 "Whart. E. 291. Ewing v. Burnett, 1 McLean's E. 
 266. Eoclcenlurgh v. Snyder, 2 "Watts' & Serg. E. 240. Roger 
 V. Benlow, 10 Serg. & Eawle's E. 303. Cornelius v. Giherson, 1 
 Dutch-. E. 1. Reed v. Field, 15 Vt. E. 672. Draper y. Slioot, 
 25 Mo. E. 197. Farrar v. Fessenden, 39 JST. H. E. 268.) 
 
 But a constructive possession of a part of a tract or parcel of 
 land may be adverse, when the party has color of title, and is in 
 the actual possession of the residue of the tract. To support a 
 constructive possession, grounded on an actual occupation of part 
 only, it is essential that the writing, relied on as evidence of title, 
 should include the land not occupied. This must of course be the 
 rule, for it would be absurd and unjust to allow a tenant to hold 
 adversely land on which he is not even a naked possessor, and for 
 which he has no shadow or color of title. ( Woods v. BanTcs, 14 
 N. H. E. 111. Jachson v. Camp, 1 Cow. E. 505. McRae v. 
 ^Villiams, 7 Jones' Law E. 430. Thompson v. Cragg, 24 Tex. 
 E. 582.) And a deed, or some writing sufficient in form to carry 
 the title to lands, when a title in fact exists, is an' essential ingre- 
 dient in a constructive adverse possession, set up to bar a recovery 
 in an action of ejectment. But a constructive adverse possession, 
 though under color of a wrongful deed, may exist by Tnere claim, 
 under certain limitations. Every adverse possession is a wrong 
 amounting to an inchoate right. In the latter sense, it is trans- 
 ferable by sale or gift ; but when constructive, there is no cor- 
 poral seisin which can be transferred by livery. It is in the 
 nature of an incorporeal right. True,, there must be a corporal, 
 not to say a contiguous, possession of part ; but that is amplified 
 
896 LAW OF ADVERSE ENJOYMENT. 
 
 and spread over the actually vacant premises lying adjacent, by a 
 deed'in.tlie tenant's bureau. The right is thus extended in theory 
 or contemplation of the law ; and, when the essential elements no 
 longer co-exist, the complex idea vanishes, or dwindles to the 
 actual, corporal, territorial limit. The English law has never, it 
 is believed, admitted the requirement whicli creates a constructive 
 possession by mere claim, though under colof of a wrongful deed. 
 It seems to prevail, however, under divers limitations, in several of 
 the American states ; and the doctrine has long been recognized^ 
 especially in the state of New York. ( Vide Jackson v. Bowen, 1 
 Gaines' E. 358. Jadlcson v. Mston, 13 Johns. E. 452, 454. Jack- 
 son V. Woodruff 1 Cow. E. 2T6. Jackson v. Richards, 6 ib. 617, 
 623. Jackson v. Yermilyea,Vo. 677. Jackson v. Oltz, 8 "Wend. 
 E. 440, 441.) The rule was found so well adapted to the exigen- 
 cies of new and unsettled parts of the country, that it has been 
 expressly adopted by the statutes of several of the states. Under 
 either the common law or statute rule, the ideal' possession cannot 
 be extended by a written instrument, beyond the customary size 
 of the lot or farm partly occupied ; and generally, the size must 
 accord with the usage of the adjoining country. An entry into pos- 
 session of a tract of land, under a deed containing specific metes 
 and bounds, gives a constructive possession of the whole tract, if 
 not in any adverse possession, although there may be no fence or 
 inclosure round the ambit of the tract, and an actual residence 
 only on a part of it ; so held by the supreme court of the United 
 States in a case involving the question of adverse possession under 
 the statutes, of Kentucky. {ElUcoit v. Pearl, 10 Peters' E. 412. 
 And vide Doe v. Throp, 1 Chipmau's E. 92.7 
 
 But this depends very much upon the terms of the statute upon 
 the subject. The only effect of claiming under a deed or other 
 paper title, upon a question of adverse possession, is to enlarge and 
 extend the possession beyond the portion actually occupied, so as 
 to include the_ entire lot described in the deed. Said Mr. Justice 
 Story: "The object of the law, in requiring actual seisin, was to 
 evince notoriety of title to the neighborhood, and the consequent 
 burdens of feudal duties. In the simplicity of ancient times, 
 there was no means of ascertaining titles but by visible seisin • 
 and, indeed, there was no other mode between subjects of passing 
 title. but livery of the land itself by the symbolical delivery of turf 
 and twig. The moment that a tenant was thus seised, he had a 
 
COKSTRUCTIVE POSSESSION, WHEN ADVERSE. 897 
 
 perfect investitiire ; and, if ousted, could maintain his action in 
 the realty, althougli he had not been long enough in possession 
 even to touch the esplees. Tlie very object of the rule, therefore, 
 was notoriety, to prevent frauds upon the land and upon the other 
 tenants. But, in a mere uncultivated country, in wild and im- 
 penetrable woods, in the sullen and solitary haunts of beasts of 
 prey, what notoriety could an entry, a gathering of a twig or an 
 acorn, convey to civilized man at the distance of hundreds of 
 miles ? The reason of the rule could not apply to such a state 
 of things ; and cessante ratione, cessat ipsa lex. We are entirely 
 satisiied that a convej'ance of wild or vacant lands gives a con- 
 structive seisin thereof in deed to the grantee. It attaches to him 
 all the legal remedies incident to the estate." {Green v. Liter, 
 8 Cranch's R. 229.) 
 
 "When the deed or other written instrument under which the 
 party claims describes an entire lot, and a part only is under 
 actual occupation within a substantial inclosure, the legal effect 
 of the deed is to enlarge the actual occupation, and to create a 
 constructive possession of the remainder. But the deed or other 
 written instrument, in order to have this effect, must cover the 
 entire premises claimed. If it be devoid of any description, if it 
 contain no definite and certain boundaries which can be located, 
 marked out and made known, it cannot have the effect to extend 
 the possession beyond the '■'■ ^cdis possessio which is definite, posi- 
 tive and notorious." In a deed or other written instrument which 
 describes nothing, there is nothing to prevent its being construed 
 to include more or less at the pleasure of the claimant. There is 
 nothing by ■which other persons whose rights may be barred or 
 prejudiced may know and ascertain the extent of the claim ; and 
 thus the rule of certainty and publicity would be entirely defeated." 
 "Color of title under a deed and occupancy of a part is sufficient 
 as to a single lot ; yet it follows, from the doctrine laid down, that 
 the deed or paper title under which the claim is made must in the 
 description include the premises. If the title is bad, it is of no 
 moirient ; but if no lands are described, nothing can pass. The 
 deed is a nullity, and never can lay the foundation of a good 
 adverse possession beyond the actual improvement." (Jackson v. 
 Woodruff, 1 Cow. R.' 276.) 
 
 AVhere a tract of land, including the premises in litigation, was 
 conveyed to the defendant's father as one farm or lot, and one 
 113 
 
898 LAW OF ADVERSE ENJOYMENT. 
 
 deed only was given, which included the entire land conveyed, 
 the tend was inclosed and occupied, except that portion of it in 
 dispui^^ wMch was uninclosed and lay between the inclosed part 
 and the public highway, and it had been constantly used by the 
 defendant and his father for the purposes of a wood-pile, and 
 occasionally for other uses, for more than twenty years, the 
 supreme court of New York held that suck facts constituted a 
 sufficient adverse possession of the entire tract. No express parol 
 evidence was given to show that the defendant claimed title to the 
 premises uninclosed by him, but it was held that his claim of title 
 was to be inferred from the fact that the grant to his father was a 
 grant in fee, and from his manner of use and occupation of the 
 premises. {Dominy v. Miller, 33 Barb. K. 386.) 
 
 In the state of Massachusetts it has been held, that, where the 
 owners of adjoining lands have established a fence varying from 
 the line described in the deeds, and each party has held and occu- 
 pied up to his side of the fence, claiming to hold accordingly for 
 twenty years, neither party can maintain a possessory action 
 against the other ; although the rule would be diiferent if 
 it appeared that the fence was located variant from the line for 
 the expressed convenience of the parties, and that they still con- 
 tinued to claim title according to the true line. {Burrell v. Bur- 
 Tell, 11 Mass. E. 298.) 
 
 In an early case in the state of New York, the court refused to 
 straighten a boundary line according to the courses in the deed ; 
 but it appeared that there had been a fence built and maintained 
 the whole length of the line by both parties for twenty-five years, 
 and an occupation by the parties, or those under whom they 
 claimed, during all that time. {Stuyvesant v. Dunham, 9 Johns. 
 R. 61. Same Case, 11 ib. 569.) And it was held by the same 
 court in a much later case, that the rule is not invariable that a 
 crooked fence will be regarded as a boundary fixed and acquiesced 
 in by the owners of adjoining lands, although it has been con- 
 tinued for more than the statutory period to bar an action. If 
 such fence divides but a small portion of the possessions; if there 
 be a fence on the true line dividing another portion ; if for nearly 
 half the length of the line between the adjoining owners there be 
 no fence or actual occupation on either side; and if there be 
 no agreement to abide by the crooked fence as a boundary, the 
 party deprived of his land by the crooked fence is not concluded 
 
CONSTRUCTIVE POSSESSION, WBEN ADVERSE. 899 
 
 from showing the true line, especially if, after such lapse of time, 
 tlie other party, by his declarations and acts, admits that such 
 fence is not a fixed and settled boundary. Nelson, C. J., said : 
 " Tlie defendant lias the paper title. As to the forty-three rods, 
 where the old fence was bounded on the north by the wood-land 
 of the plaintiff, there seems to be no good reason forbidding the 
 assertion of that title to the true line. The plaintiff having no 
 permanent or visible occupation upon the opposite side over this 
 line, it cannot with much force be said that the fence had been 
 fixed upon by both parties as the boundary, nor that the defendant 
 had acquiesced in an occupation of his land by the plaintiff for 
 any length of time whatever. He had a right to leave a strip of 
 woods between his fence and the line ; and even if it was left by 
 mistake, as it probably was, he did not thereby lose his title to it, 
 nor did the plaintiff acquire it. * * * These thirty-eight rods 
 were cleared and fenced by the father of the defendant some yeare 
 before the clearing by the plaintiff on the opposite side, and a 
 witness for tlie plaintiff probably gave the true reason why the 
 fence was built crooljed. He supposed it was so made as being 
 most convenient upon newly cleared lands, among stumps and 
 other iinpedimen^ts. The adjoining land being covered with a 
 forest, it was not considered very important to ascertain with 
 precision the true line of tlie lot. This was omitted till improve- 
 ments were made on both sides." {Lamb v. Coe, 15 "Wend. E. 
 643, 645, 646.) 
 
 It was said by the judge who delivered the opinion of the 
 court in an early case in Pennsylvania, that "a wrongful posses- 
 sion cannot be extended by construction ; constructive possession 
 always accomjjanies the right. It is a contradiction in terms, that 
 a man by wrong, should have any right, and that this right, by 
 wrong, should be extended by construction. There cannot be 
 two conflicting constructive possessions, one in the owner and the 
 other in the trespasser. The right always draws to it the posses- 
 sion, and it there remains, until seized by the wrong-doer, whose 
 possession is strictly ^oss(^ss^(?^c(Z^«/ who must necessarily be con- 
 fined to what he has grasped, his real and actual possession. 
 Eeyond that no lengtli of time will protect him ; because beyond 
 that the ovraer's possession has never been changed ; it always is, 
 in contemplation of law, continued in him. These are the dictates 
 of common sense, of common justice, and of the common law. 
 
90O- LAW OF ADVERSE ENJOYMENT. 
 
 Did they need authority to support them, authorities ahound in 
 the decisions of the courts of tlie several states, and of the 
 supreme court of the United States." {Miller v. Shaw, 7 Serg. & 
 Eawle's R. 143.) This is tlie general rule in cases where the land 
 is claimed without color of title ; but a constructive possession 
 is recognized as sufficient under certain circumstances to constitute 
 an adverse possession in the state of Pennsylvania, where the same 
 is under a deed or written conveyance. ( Vide Farley v. Lenox, 8 
 Serg. & Eawle's E. 392. Roger v. Benlow, 10 ib. 303.) 
 
 Two persons, representing separate interests, can never be in 
 adverse constructive possession of the same land at the same time ; 
 so that, from the very nature of the case, the owner of the prem- 
 ises, being, in contemplation of law, in the constructive possession 
 of his land when not in the actual possession thereof, cannot 
 be disseised except by an entry and occupancy by another, 
 and only to the extent of such occupancy. {Hodges v. Eddy, 38 
 Yt. E. 344, 345. Stevens v. Eollister, 18 ib. 294. Barr v. Gratz, 
 4 Wheat E. 213. Smith v. Burtis, 6 Johns. E. 218. Codman v. 
 Winslow, 10 Mass. E. 146, 151. Brimmer v. Zong Wharf, 5 Pick. 
 E. 131. Whittington v. Wright, 9 Ga. E. 23.) And the learned 
 annotator upon the work of Mr. Smith, gathers from the authori- 
 ties, that " the nature of that adverse possession which is required 
 to constitute a bar to the assertion of a legal title by the owner of 
 it, or by one against whom the adverse occupant brings ejectment, 
 * * * must be an actual, visible, notorious, distinct and hostile 
 possession." (2 Smith's Lead. Cas. 5th Am. ed., 560, 561. And 
 vide Calhoun v. Cook, 9 Penn. E. 226. Turney v. Chatriberlain, 15 
 111. E. 271. Armstrong v. Risteau, 5 Md. E. 256. Robinson v. 
 Lahe, 14 Iowa E. 424.) 
 
 As a general rule, when a large tract of land is divided into 
 lots, the possession of one lot adversely will not create a construct- 
 ive adverse possession of the other parts of the tract. This doc- 
 trine has been repeatedly recognized by the courts, and especially 
 in the state of New York. The doctrine of adverse possession, 
 applied to a farm or single lot of land, is in itself reasonable and 
 just. In the first place, the quantity of land is small. Posses- 
 sions thus taken under a claim of title are, generally, for the pur- 
 pose of cultivation and permanent improvement. It is, generally' 
 necessary to reserve a part for wood-land. Good husbandry for- 
 bids the actual improvement of the whole. The possessions are, 
 
CONSTRUCTIVE POSSESSION, WHEN ADVERSE. 901 
 
 risually, 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 the title. It is 
 believed that no well-founded complaint can be urged against the 
 operation of the principle ; but the attempt to apply the same rule 
 to cases where a large tract is convej^ed, would be mischievous 
 indeed, and the doctrine is never sanctioned by the courts. When 
 a party claims to hold a lot of land adversely, by proving occupancy 
 of a part only, his claim must be under a deed or paper title, and 
 must be confined to a single farm or lot of land, purchased for the 
 purpose of actual cultivation. {JacJcson v. Woodniff, 1 Cow. R. 
 277. Jackson v. Richards, 6 ib. C17.) 
 
 "Where a tract of twelve thousand acres was divided into lots, 
 and an entry made by the party, under a claim of paper title, and 
 actual possession taken of the greater part of the tract, it was held 
 by the supreme court of New York, that the same was no founda- 
 tion for a constructive possession by such party of a lot not culti- 
 vated, nor improved, nor protected by a substantial inclosure, nor 
 used for the supply of fuel or fencing timber for the purposes of 
 husbandry, or tlie ordinary use of the party or any of his tenants, 
 nor being a portion of any known farm or single lot partly im- 
 proved that has been left not cleared, or not inclosed according to the 
 usual course and custom of the adjoining country, as required by 
 the provisions of the statute of the state. Wright, J., delivering 
 the opinion of the court, said : " ISow, were this a case in which a 
 constructive adverse possession might be shown, although it might 
 appear that the defendant, or those under whom he claims, entered 
 into the possession of great lot four, under claim of title, founding 
 such claim upon a written instrument, and that there has been a 
 continued occupation and possession of parts of such tract, it being 
 divided into lots, and the lot in suit not having been usually culti- 
 vated or improved, or protected by a substantial inclosure, or used 
 for the supply of fuel or fencing timber for the purposes of hus- 
 bandry, or the ordinary use of the defendant or those under whom 
 he claims, or any of his tenants, and not being a portion of a 
 known farm or single lot partly improved that has been left not 
 cleared, or not inclosed according to the usual custom of the ad- 
 
902 LAW OF ADVERSE ENJOYMENT. 
 
 joining country, the possession of some of the lots in the tract 
 claimed is not constructively to be deemed a possession of the lot 
 or tract in suit." {The Peo^ple v. Livivgston, 8 Barb. K. 253, 263, 
 264.) But wliere a grantee of a large tract of uncultivated land, 
 that is to say, a tract of fifteen hundred acres, entered upon the 
 same in 1797, under and by virtue of his deed, and made exten- 
 sive, valuable and permanent improvements, erected buildings, 
 and paid taxes thereon ; the cleared portion being continuously 
 occupied by him and his successors in the title, and by his and 
 their lessees and tenants, down to the present time, under a claim 
 of title to the whole tract ; and the uncleared portion of the land 
 having been extensively used for cutting timber for the market, 
 and for fencing and firewood, the New York Court of appeals held 
 that, in the absence of any subordinate allotment which would 
 limit the effect of such entry and possession, the whole of the 
 premises included in the deed were, by force of the ninth section 
 of the article of tlie revised statutes of the state, relative to the 
 time of commencing actions relating to real property (2 R. S. 294. 
 2 Stat, at Large, 305), to be decreed to have been held adversely to 
 persons claiming to hold under a subsequent deed. {Munro v. 
 Merchant, 28 N. Y. E. 9.) 
 
 The decision of the case of Munro v. Merchant, by the supreme 
 court, was adverse to the constructive possession claimed, by the 
 defendant, and the court referred to the case of The People v. Liv- 
 ingston, supra, as an authority to justify the decision. The court 
 of appeals, however, took a different view of the ease, and reversed 
 the decision of the supreme court ; but it does not appear that they 
 designed to disturb the doctrine of the case of The People v. Liv- 
 ingston, and tjie two cases would not seem necessarily to conflict 
 with each other. Indeed, it was held by the old supreme court of 
 the state of New York, that an entry upon a lot of fifteen hundred 
 acres, with claim of title by deed, is not constructively good beyond 
 the actual occupation ; that is to say, that a party cannot set up 
 an adverse possession to more of such a tract than he has under 
 actual improvement, or within a substantial inclosure. {Sharp v. 
 JBrandon, 15 "Wend. E. 597.) The supreme court of Vermont has 
 held to substantially the same doctrine ; that is to sav, that court 
 held that the doctrine of constructive possession applies only to 
 land taken for the ordinary pm-poses of cultivation and occupation, 
 and that it will not extend to the case of a few acres taken posses- 
 
CONSTRUCTIVE POSSESSION, WEEN ADVERSE. 903 
 
 Bion- of for the purpose of gaining title to a whole township. 
 {Chandler v. Spear, 22 Vt. E. 388. And mde Hunter y. Chrisman, 
 6 B. Mon. E. 463.) 
 
 In a case in the superior court of the city of New York, wherein 
 it appeared that the owner built eleven inches|from the line of his 
 lot, tlie owner of the adjacent lot built, placing his underground 
 foundation under the^ eleven inches, starting his wall, at the surface, 
 on the line, and carrj^kig it up so that it touched the wall of the 
 former owner above, and closed the passage by a. wall in the rear; 
 and tlie occupants of the building of the tirst mentioned party 
 used the passage so formed ; in an ejectment brought by the first 
 party, though the building of the second named party had been 
 maintained more than twenty years, the court held that there was 
 no adverse possession. {Miller v. Piatt, 5 Duer's E. 272.) 
 
 Where a boundary line was in dispute, which the lessor of the 
 plaintiff claimed to have run according to a deed under which 
 both parties held, so as to cut off part of the defendant's premises, 
 the latter was permitted to show a possession by himself of that 
 part, adversely' to any other claim, for thirty-six years, and a recog- 
 nition by the lessor of the plaintiff of the existing boundary. {Jack- 
 son V. Bowen, 1 Caines' E. 358.) 
 
 It has sometimes been held in those states in which considerable 
 importance is attached to a survey of land, that, where a party 
 enters upon premises claiming to take possession of a tract covered 
 by a survey, and actually occupies, and improves a portion of snch 
 tract, and continues so to occupy a part, and claim the whole, and 
 pay the taxes thereon, during the time prescribed by the statute 
 of limitations, such possessor would thei-eby acquire title to the 
 whole tract included within the bounds of the survey. {Ilirser v. 
 Blchel, 7 "Watts' E. 35. Criswell v. Altemus, lb. 580. Call v. 
 JVeely, .3 ib. 69. Layorence v. Hunter, 9 ib. 64. Murphy 
 V. Springer, 1 Grant's Cases, 73. But vide Brown v. Edson, 
 22 Vt. E. 357.) But all of the authorities make a distinction 
 between the possession taken of lands by a mere usurper and the 
 possession taken under color of title. In the one case, the person 
 is deemed to be in possession of nothing of whitsh he is not in the 
 actual occupation, while, in the other case, his possession is not 
 limited by his actual occupancy, but it will embrace all the land 
 covered by his title ; or, in the language of Judge Story, " where 
 a person enters into land under a claim of title thereto by a 
 
904: LAW OF ADVERSE ENJOTMENT. 
 
 recorded deed, his entry and possession are referred to sucli title ; 
 and ibe is deemed to have seisin of the land'co-extensive with the 
 boundaries stated in liis deed where there is no open adverse pos- 
 session of any part of tlie land so described in any other person." 
 {Presoott V. Nivers, 4 Mason's E. 330. And vide Jackson v. 
 Porter, Paine's C. C. E. 457. Potts v. Gilbert, 3 Wash. C. C. E. 
 475. Buynum v. Thompson, 3 Ired. E. 578. Fitzrandolph v. 
 Norman, 2 Taylor's E. 131. Johnson v. McMillan, 1 Strob. E. 
 143. Well V. Sturtevant, 1 Scam. E. 181. Lovett v. Noble, lb. 186. 
 K]il6 V. Tulbs, 23"Cal. E. 431. ^Yillour v. Anderson, 37 Miss. E. 
 155.) And it is probably not essential that the deed or other 
 instrument under which the land is claimed be registered or 
 recorded, provided thfe same is good in point of form, purports to 
 convey the legal title, and is properly executed. ( Yide Lea v. 
 Polk County Copper Company, 21 How. U. S. E. 493. Dickin- 
 son V. Burden, 30 111. E. 239. Eanna v. Benfro, 32 Miss. E. 125. 
 Minot V. Brooks, 16 K". H. E. 374.) 
 
 The doctrine is well settled, that, where a man enters on land 
 claiming a right and title to the same under color of a conveyance, 
 and acquires a seisin by his entry, his seisin will extend to the 
 whole parcel, within the limits hereinbefore stated ; for, in this 
 case, an entry on part is an entry on the whole. But where a man 
 not claiming any right or title under any conveyance or other writ- 
 ten instrument enters upon such land, he acquires no seisin but by 
 the ouster of him who was seised ; and, to constitute an ouster of 
 him wlio was seised, the disseisor must have the actual, exclusive 
 occupation of the land, claiming to hold it against him who was 
 seised. At least, tliis is the doctrine as settled by the courts of a 
 large majority of the states, if it is not recognized in them all. 
 
 Says Mr. Angell : " It is very clear that, where there is a mixed 
 possession under a color of title, or a possession at the same time 
 of more persons than one, each claiming under a separate colorable 
 title, the seisin of the estate is in him who has the better title ; for, 
 as all cannot be seised, the possession follows the title." (Ano-ell 
 on Lim. 413, 414.) And Chief Justice Parsons, of the Massachu- 
 setts supreme judicial court, a long time ago laid down the doc- 
 trine, that, " although there may be a concurrent possession, there 
 cannot be a concurrent seisin of land ; and, one only being seised, 
 the possession must be adjudged to be in hira, because he has the 
 best right." {Laydon v. Pottef, 3 Mass. E. 219. And vide Gil- 
 
POSSESSION OF LAND BY MISTAKE. 905 
 
 man v. Winslow, 10 ib. 151. Comw.onwealth v. Studley, lb. 408. 
 Brimmer v. Proprietors of Long Wharf, 5 Pick. R. 131; Gush- 
 man v. Blanchard, 3 Greenl. R. 266.) There would appear to be 
 no clearer principle of reason and justice than this, that where 
 tlierc is a mixed possession the legal seisin is according to tlie title. 
 Title draws possession to the owner. It repiains until he is dis- 
 possessed, and then no further than actual dispossession by a tres- 
 passer, who cannot acquire a constructive possession, which always 
 remains with the owner. This doctrine is founded in justice and 
 general convenience, and favors riglit and resists wrong and 
 oppression. ( Vide Hammond v. Bidgeley, 5 Harr. & Johns. R. 
 245. Hall V. Powell, 4 Serg. & Rawle's R. 465. Burns v. Swift, 
 2 ib. 436. Orhison v. Morrison, 1 Hawkes' R. 468. Povj v. 
 Stephens, 1 Dev. & Batt. R. 5. Pamdson''s Lessee v. Beatty, 
 2 Harr. & McHen. R. 621.) 
 
 The question has frequently been befoi'e the courts as to whether 
 a party can set up an adverse possession to lands occupied by 
 him under a mistake, supposing the same to belong to him, when 
 in point of fact they are outside of his real claim ; and the doctrine 
 of the courts evidently is that, where a grantee, in taking possession 
 ■under his deed, goes unintentionally and by mistake bej'ond his 
 proper boundaries, and enters upon and actually occupies and 
 improves lands 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, if continued the requisite 
 length of time, will bar the right of the true owner. In one case 
 before the supreme court of IS^ew Plampshire, the title to a gore of 
 land lying between the towns of Enfield and Grantham was 
 involved. The proprietors of Enfield, supposing this gore to 
 belong to them, had entered upon a portion of it, claiming the 
 whole, and occupied such portion for more than twenty years; 
 but it turned out that the gore was not embraced in this charter ; 
 a person took possession of a lot within the gore, and the pro- 
 prietors of Enfield brought ejectment against him to recover it. 
 The court charged the jury, that, if the proprietors of Enfield had 
 entered upon, and had peaceable possession of, the gore for more 
 than twenty years, claiming it under their charter, they were 
 entitled to recover, and that an entry into part was in law, for this 
 purpose, an entry into the whole. Upon motion for a new trial, 
 this latter branch of the charge was held to be erroneous ; but tho 
 114 
 
906 JyAW OF ADVEUSE EKJOYMENT. 
 
 chief justice, ■who delivered the opinion of the court, expressly 
 conceded, that, to the extent of the actual occupancy of the plaint- 
 IfFo, an adverse possession was made ont. {Enfield v. Day, 1 N. 
 H. R. 45T.) And in a subsequent case, before the same distin- 
 guislied tribunal, the language of the court was still more explicit. 
 There the ancestor of the defendant, in locating the tract convejed 
 to him, had, by mistake, taken possession of land outside the 
 boundaries contained in his deed. He, however, and the defend- 
 ant who succeeded him, had actually improved only a part of this 
 excess, inclosing the residue by a brush fence, and occasionally 
 cutting firewood upon it. A verdict was obtained by the defend- 
 ant as to the whole of the land in controversy, which the court set 
 aside on the ground that he could not hold, by virtue of his adverse 
 possession, beyond the bounds of his actual occupancy and improve- 
 ment. The court, speaking of the defendant, says : " There is sufii- 
 cient evidence to show that he held adversely beyond the limits of 
 the one hundred acres (the contents of the deed) claiming title in 
 himself; and twenty years' actual possession will give him a title to 
 the lands thus holdenP But the error was in allowing the party 
 to hold the land beyond the limits of his deed and his actual occu- 
 pancy. {Ilale V. Gladden, 10 IN'. H. E. 397.) 
 
 The court of appeals of Kentucky has taken the same view of 
 this question. It was held that a settler, who, in taking possession 
 under his own claim, accidentally and unintentionally intrudes 
 upon the claim of another, acquires thereby no interfering pos- 
 session outside of his actual close. It was, however, assumed 
 throughout the case, that to the extent of the actual inclosure the 
 possession in such cases must be regarded as adverse ; and the 
 same doctrine has been adopted in subsequent cases before the same 
 court. {MoKinney v. Kenny, 1 A. K. Marsh. R. 460. And vide 
 Smith V. Morrow, 5 Litt. R. 210. Hunter v. Chrisman, 6 B. 
 Monroe's R. 463.) And the court of appeals of the state of I^ew 
 York has recently recognized the principle of these cases, as 
 sound, and expressly adopted the same view of the question of a 
 mistaken possession of land outside of the bounds of the deed, 
 under which the party claims. {Grary v. Goodman, 22 N. H. R. 
 170.) And the general doctrine of the courts upon the subject is, 
 undoirbtedly, in accordance with the rule before stated. 
 
 "If a party occupy up to a certain fence because he believes it 
 to be the line, but having no intention to claim up to the fence if 
 
TBE POSSESSION MUST BE CONTINUED. 907 
 
 it should be beyond the line, an indispensable element of adverse 
 possession is wanting. The intent to claim wliich is set up is 
 upon the condition that the fence is upon the line, or, if the fence 
 is put over the line from mere convenience, the occupation and 
 exercise of ownership are without claim of title, and the possession 
 would not be adverse." {Brown v. CoeTcnell, 33 Ala. B. 45. 
 Howard v. Reedy, 29 Ga. R. 154.) But, if the division line was 
 actually agreed upon by the adjoining owners, and tliey actually 
 occupied the lands up to the same for tlie period of limitation, the 
 rule would be different. {Ilolton v. Whitney, 30 Yt. E. 410. /St. 
 Louis University v. McCune, 28 Mo. E. 481.) 
 
 CHAPTEE LI. 
 
 AIT ADVEESE POSSESSION, TO BE EFFECTUAL, MUST BE CONTINtfED FOE 
 THE PEEIOD PEESCEIBED BT THE STATUTE OF LIMITATIONS — WHAT 
 IS NECESSAEY TO THE CONTINUITY OF A POSSESSION. 
 
 The possession of land, in order to be adverse, must not only be 
 under claim or color of title, hostile in its inception to the true 
 title, and marked by definite boundaries, but, to be effectual under 
 the statute of limitations, it must be continued for the whole period 
 prescribed by the statute. An entry upon lands under color or 
 claim of title, if accompanied by the other elements required, may 
 constitute an adverse possession against all the world ; but, unless 
 such adverse possession be continued for the whole statutory period, 
 it will not ripen into a title that will bar the entry of tlie true 
 owner. If the possession, though adverse in its character, become 
 broken, that moment it ceases to be effectual. If there be one 
 element more distinctly material than another in conferring title 
 by adverse possession, when all requisites concur, it is the existence 
 of a continuous adverse possession for the whole period prescribed 
 by the statute of limitations. {Groft v. Weekland, 34 Penn. E. 308.) 
 But the possession will be adverse if had and continued under the 
 claim or color of title, however groundless the supposed title may 
 be. {Fvrd v. Wilson, 35 Miss. E. 504, 505. Grant v. Fowler, 39 
 IT. H. E. 104. Farrar v. Fessenden, lb. 281.) The rule lias 
 quite recently been declared by the supreme court of the state of 
 
908 LAW OF ADVERSE ENJOYMENT. 
 
 Iowa, that a party, relying npon the bar of the statute of limita- 
 tions in an action for the recovery of real property, must show 
 that he has held for the ctatutory period, not only by possession 
 actual, open and adverse, but that it has been maintained as a right 
 resulting from an exclusive property and dominion over theestate, 
 and not subordinate to the will of another, or by an agreement 
 with the true owner of the title; and that it is a material and 
 essential requisite of adverse possession, that the occupancy has 
 been with the intention to claim title. {MoNainee v. Moreland, 
 26 Iowa E. 96. And vide Booth v. S7nall, 25 ib. 177.) 
 
 What constitutes a continuity of possession is not always quite 
 easy to determine, and the question has been attended with much 
 litigation. When the adverse possession is commenced and con- 
 tinued by the same party in person, the question may be settled 
 without ditficulty. But, when the continuity is claimed under pos- 
 sessions by different persons, or under different rights, the subject 
 is often complicated and sometimes difficult. It is well settled that 
 the possession need not be by the same person and under the same 
 right ; but when it is held by different persons, there are certain, 
 pre-requisites important to be understood. 
 
 A title to land by prescription is based upon a grant, conclusively 
 presumed from an exclusive adverse possession of the premises for 
 the term provided by the statute of limitations ; or the true owner 
 may be barred of his remedy by such adverse possession during 
 the whole of the limited time. The owner, however, must be 
 ousted, and the ouster must continue uninterruptedly for the pre- 
 scribed period of time. This is the fact -which creates the bar. 
 This fact cannot exist if the person having the title takes actual 
 possession in pursuance of his right but for a moment, or the ad- 
 verse possession is at any time abandoned by the disseisor. The 
 moment the premises become vacant, that moment the owner, by 
 reason of his title, will be regarded in the constructive possession, 
 and the adverse ]Dossession of the wrong-doer is at an end. But 
 ■when a party is once dispossessed it is not every entry upon the 
 premises without permission that will disturb the adverse posses- 
 sion. A man may tread upon his own soil and still be as much 
 out of possession of it there as elsewhere. He must assert his 
 claim to the land, perform some act that will reinstate him in pos- 
 session, before he can regain what he has lost. An entry by stealth 
 under circumstances that go to show that the party claimed no 
 
OF CONTINUITY OF POSSESSION. 909 
 
 right to enter, or any entry for other purposes than those connected 
 with a right to enter, will not be sufficient to break the continuity 
 of exclusive possession in another. But real property cannot be 
 acquired by jan adverse possession, except the owner is ousted, and 
 that ouster shall be uninterruptedly continued for the whole statu- 
 tory period ; and -the adverse possession must be open, visible and 
 exclusive in the disseisor. The law designs that the owner shall 
 have ample knowledge on the subject, and a full opportunity to 
 assert his claim ; but if he sleeps upon his rights for the period 
 prescribed by the statute of limitations, he is presumed to have 
 acquiesced in the claims of another. (School District No. 8 of 
 Thompson v. Lynch, 33 Conn. K. 330. Vide Pray v. Pierce, 1 
 Mass. E. 383.) It is but fair to require that the adverse occupancy 
 shall be continually open, visible and exclusive, in order that the 
 owner of the tnie title be barred of his remedy for his land ; and 
 it has been held that the occasional cutting of timber upon the 
 land, during a part of the statutory period, does not amount to 
 such a continued occupancy as will prevent the true owner from 
 recovering his land. {Vide Braxdale v. Speed, 1 Marsh. R. 106. 
 Smith V. Mitchell, lb. 207. Trotter v. Cassady, 3 ib. 366.) Said 
 Buchanan, J., in delivering the opinion of the court in a case in- 
 volving the question : " Even if the defendant's possession by in- 
 closure commenced first — which is not stated to be the case — that, 
 and his cutting timber exterior to the fences, could not have pre- 
 vented the constructive possession vesting by operation of law, in 
 Jordon, of all the uninclosed parts of the number of two, on the 
 actual entry and inclosure made by him, and those claiming imder 
 him, upon a part of that tract of land, within twenty years from 
 the date of the grant, claiming title to the whole." {Cheney v. 
 Ringgold, 2 Harr. & Johns. E. 87, 95.) 
 
 But in a case in the state of Maine, it was said that the premises 
 " being wild and nincultivated, the jury were not to expect the 
 same evidence of occupancy which a cultivated farm would present 
 to them ; but that facts and conduct on the part of a person exer- 
 cising acts of ownership, and claiming adversely title and posses- 
 sion, would amount in law to possession of the land and disseisin, 
 if known and acquiesced in by him who has the right; when, if 
 unknown and not acquiesced in by such party, they would not 
 amount to such possession and disseisin, but only to successive 
 trespasses." {Robinson v. Sweet, 3 Greenleaf 's E. 315, 319.) 
 
910 LAW QF ADVERSE EKJOTMENT. 
 
 In a case in Pennsylvania, Tilgliman, Ch. J., delivering tlie 
 opinion of the court, observed : " Let ns consider, then, the force 
 of the other reason urged by the plaintiff, that, the possession 
 having been delivered to the plaintiff by virtue of a recovery in a 
 court of justice, the act of limitations was thereby avoided, because 
 the continuity of the defendant's possession was broken. If the 
 continuity of possession had been broken before the expiration of 
 twenty-one years, the period required to give effect to an act of 
 limitations, the argument would have been good. An entry within 
 the twenty-one years destroys the efficacy of all prior possession, 
 so tliat, to gain a title under the act of limitations, a new advers<} 
 possession for twenty-one years must be had." (Pedrick v. Searle, 
 5 Serg. & Eawle's R. 240.) This is the true doctrine. If 'the 
 adverse possession be broken but for a day, its effect is entirely 
 destroyed, and, so far as that possession is concerned, it is at an 
 end. The possession which will ripen into a title, or bar an entry 
 by the true owner of the land, must be notorious and continued ; 
 and, in some cases, the interruptions of simple trespassers, when 
 quite decided and indicative of claim, have been declared to be 
 sufficient to break the continuity and defeat the adverse possession. 
 ( Vide Andrews v. Jfulford, 1 Hay w. R. 320. Park v. Cochran, 
 lb. 180. Holdfast v. Shepard, 6 Ired. R. 361. Hood \. Hood, 
 2 Grant's Cases, 229. WioHife v. Fusor, 9 B. Mon. R. 253. 
 Taylor v. Burnsides, 1 Gratt. R. 165. Hoe v. Eslana, 11 Ala. 
 R. 1028. Cornelius v. Giberson, 1 Dutch. E. 1.) 
 
 It has been declared by the courts of North Carolina that, in 
 order to gain title to land by possession under the act of limita- 
 tions of that state, the party " must take possession with a belief 
 that the land possessed is his own, as under a patent or deed under 
 some patentee ; he must take possession with such circumstances 
 as are capable in their nature of notifying to mankind that he is 
 upon the land, claiming it as his own, as in person or by his 
 tenant ; this notorious possession must be a continued possession ; 
 a secret-taking possession, and not continuing it, as it cannot 
 answer the purpose of notoriety to adverse claimants, cannot 
 extinguish their claim for having not been put in in due time. 
 * * * A single act of taking possession, and then leaving the 
 land, will not do. The possession that is capable of ripenino- into 
 title must be notorious, and continued for seven years without 
 entry, claim or action on the other side." {Den v. Mulford 
 
OF CONTINUITY OF POSSESSION. 911 
 
 1 Hayw. E. 320, 321. And vide Den v. Cochran, lb. IfeO. Den 
 V. Smith, lb. 249. JBorrets v. Turner, 2 ib. 114. Den v. Leggat, 
 3 Murpli. R. 539.) And, again, Taylor, Ch. J., delivering the 
 opinion of the coiirt in another case in North Carolina, said : 
 " But a possession for tliis period can only meet the spirit and 
 design of the law when it is unknown and uninterrupted ; for, as 
 it is founded on the supposition that the possessor really believes 
 he has title, this idea is weakened rather than confirmed by his 
 occasionally withdrawing from the possession and leaving the land 
 without cultivation, without occupancy^ and without a tenant." 
 {Den V. Ridley, 2 N. C. Law Eep. 400. And vide Denham v. 
 Iloleman, 26 Ga. E. 191. Morrison v. Kelly, 22 111. E. 623. 
 Nixon V. Porter, 38 Miss. E. 415.) 
 
 But the authorities all agree that, to make an adverse possession 
 effective, there must be a continuity of tlie possession for tlie 
 whole period prescribed by the statute of limitations ; so that the 
 question recurs as to what is a continuity of possession in the eye 
 of the law. This may depend upon the fact, to some extent, 
 whether the adverse possession claimed be actual or constructive. 
 If the possession is under claim of title, simply, without a con- 
 veyance, or other written instrument, then the adverse possession 
 must not only continue, but it must continue the same in point of 
 locality during* the prescribed period of time sufficient to count it 
 a bar ; that is to say, a roving possession from one part of a tract 
 of land to another cannot bar the right of entry of the owner 
 upon any part of the land which Jiad not been held adversely 
 for the statutory time, although the different periods of possession 
 of the separate parcels should amount in the whole to that num- 
 ber of years. If the possession is under color of title then an 
 actual possession and occupation of aTpart of the parcel claimed, 
 and a constructive possession of the residue, must continue unin- 
 terrnptedly for the whole period prescribed. Bnt, as before 
 stated, it is not necessary that the possession be held during the 
 whole period by the same person and under the same right ; but 
 where the possession is held by different persons, as a genei-al rule, 
 a privity must have existed between them. {Wheeler y. Moody, 
 9 Texas E. 397. Sohrach v. ZuUer, 34 Penn. E. 38. Doswell v. 
 De La Lanza, 20 How. II. S. E. 32.) 
 
 Judge "Washington, once charging a jury in the circuit court of 
 the United States for the third circuit, said : " The court is per 
 
912 ZAW OF ADVERSE ENJOYMENT. 
 
 feetly clear, that, where different persons enter upon land in 
 succession, each retaining the possession for a period short of 
 twenty-one years, the last possessor, who may be the defendant, 
 cannot tack the possession of his predecessors to his own, so as to 
 make out one entire continuing possession of twenty-oue years, to 
 bar the entry of the owner. The possession of A., the first occu- 
 pant, cannot be the possession of B., the next occupant, because, 
 the moment A. quits the actual possession, the legal possession of 
 the real owner is restored, and the entry of B. constitutes him a 
 new disseisor, and if he seeks to bar the entry of the owner, he 
 must show an actual adverse possession continuing in himself for 
 twenty-one years. There is in truth no privity between A. and 
 B." {Lessee of Potts v. Gilbert, 1 Hall's Jour, of Jurisprudence, 
 252, 256.) But so far as the proposition is general, that the 
 adverse possession of one party cannot pass to another in such a 
 way as that the aggregate possessions of the two can be made 
 available to the last possessor under the statute of limitations, the 
 same is a mistake. Adverse possession to bar an entry must be 
 confined to the particular parcel occupied, and it must appear that 
 the continuity of possession during the whole period is applicable 
 to such parcel ; but the chain of possession may continue 
 unbroken by a succession of tenants ; and where this appears, the 
 adverse possession may be just as effectual as though the premises 
 were held during the whole period by the same person. All that 
 is requisite in order to make an adverse possession effectual for 
 the statutory period by successive persons is, that such possession 
 be continued by an unbroken chain of privity between the adverse 
 possessors. Where one entered, and then another claimed ad- 
 versely to him, and took possession under such claim by consent 
 "of the first possessor, pursuant to a compromise between them, it 
 was held, that this was not a continuity of the first possession 
 M-ithin the rule, which requires privity between the successive 
 possessors. {.Jackson v. Leonard, 9 Cow. E.. 653.) 
 
 There must be privity and continuity of possession, under 
 claim of title, during the whole statutory period, in order to make 
 an adverse possession effective to bar an entry, or to ripen the 
 possession into title to the premises enjoyed. {Brandt v. Ogden, 
 1 Johns. R. 159, Doe v. Campbell, 10 ib. 477.) And it is held 
 that privity of contract, blood or estate must exist between the con- 
 secutive possessors of land to establish a continuity of: a construct- 
 
OF CONTINUITY OF POSSESSION. 913 
 
 iw adverse possession. A deed from one possessor to another, 
 void on its face, will not preserve the continuity of such possession. 
 And it may be atfirmed as a general rule that, when an adverse 
 possession in several persons successively is necessary to complete 
 the terpi of limitation, an unbroken transmission of the possession 
 must be shown, from one to the other, during a sufficient number 
 of years to satisfy the statute of limitations. There must bean , 
 adverse possession by the party, or by those under whom he holds, 
 or both, for the term of limitation. And it cannot be said that 
 one holds an adverse possession under another, in any case, with- 
 out privity either of contract, blood or estate. {Simpson v. JDown- 
 Ing, 23 Wend. K. 316.) As has been observed in another place, 
 every adverse possession is a wrong amounting to an inchoate 
 right. In the latter sense, it is transferable by sale or gift ; but 
 when constructive, there is no corporeal seisin which can be trans- 
 ferred by livery. It is in the nature of an ■ incorporeal right. It 
 must be predicated upon a color of title to begin with, and then 
 the claim of each successor of the party in possession must be 
 identified by such conveyances from one to another as, supposing 
 a good title to exist, would transfer that title. As between the 
 parties who stand along the line of succession, the title is looked 
 upon as rightful, but the original title of the first adverse possessor 
 must pass to the party in possession at the termination of the 
 statutory period, so as that there shall be a continuity of the estate, 
 in order that the adverse possession .be effectual and availing. It 
 has been held by the supreme court of the United States, that a 
 purchaser without notice has a right to join his adversary's posses- 
 sion to the ostensible possession of his vendor, so as to give him 
 the benefit of the statute of limitations. {Alexander v. Pendleton, 
 8 Cranch's R. 462.) And the same court held that an advei-se 
 possession, under a survey, previous to the patent, maybe con- 
 nected with the possession after the patent, so as to come within 
 the statute of limitations of Kentucky. ( Walden v. Seirs of 
 Oratz, 1 Wheat. R. 292.) And in a case in the state courts of 
 Kentucky, where it appeared that the party who first took the 
 possession of the land in controversy surrendered the possession, 
 before the statute had fully run, to the defendants or those under 
 whom they claimed, in pursuance of a decree of court, and the ag- 
 gregate of the possessions made up the statutory limit, the court 
 held that the adverse possession was effective to bar a recovery by 
 115 
 
914; LAW OF ADVERSE ENJOYMENT. 
 
 the owner of the true title, declaring that, " in the reason and 
 nature of the tiling," it could make no difference whether the pos- 
 session be held uniformly under one title, or at different times 
 under different titles, provided the claim of title " be always 
 adverse to that of the plaintiff, or whether the possession be held 
 by the same or a succession of individuals, provided the possession 
 be a continued and uninterrupted one." {Shannon v. Kenney, 1 
 Marsh. E, 4. And vide Hood v. Walton, 2 ib. 620. Fleake v. 
 Chambers, 1 B. Mon. R. 565.) But this, upon the face of it, would 
 seem to be contrary to the general rule, and the same court held, 
 at a later date, that when an adverse possession is held by different 
 persons a privity must have existed between them. ( Winn v. 
 Wilbite, 5 Marsh. R. JST. S. 524.) And in a case hereinbefore cited 
 from the New York reports, the court said : " But the decisive 
 objection to this defense is, that no regular deduction of title or 
 .privity and continuity of possession was shown, and deduced down 
 from Smith to Elliot, or to any of the other defendants. Adverse 
 possession must be marked by definite boundaries, and be regvlarly 
 continued down to render it availing." {Brandt v. Ogden, 1 
 Johns. R. 156.) 
 
 In a late case before the supreme court of errors of the state of 
 Connecticut, it was held that, to make an adverse possessory title 
 •by the possession of successive occupants, the possession must be 
 connected and continuous, but that such connection and con- 
 tinuity may be effected by any conveyance, agreement or under- 
 standing that has for its object a transfer of the possession and is- 
 accompanied by a transfer in fact. And evidence, therefore, that 
 an agreement for the sale of certain premises by an adverse pos- 
 sessor to one who succeeded him in the possession embraced the 
 land in question, but that it was omitted by mistake in the draft- 
 ing of the deed, was held admissible for the purpose of showing 
 the relation of the possession taken to that relinquished. Butler, J., 
 said : " Doubtless the possessions must be connected and continuous, 
 so that the possession of the true owner shall not constructively in- 
 tervene between them ; but such continuity and connection may be 
 effected by any conveyance, agreement or understanding which has 
 for its object a transfer of the rights of the possessor, or of his 
 possession, and is accompanied by a transfer of possession in fact." 
 (Smith v. Chapin, 31 Conn. R. 530. And vide Fanning v. Will- 
 cox, 3 Day's E. 258.) 
 
OF CONTINUITY OF POSSESSION. 915 
 
 Tlie general rules of law respecting successive disseisins are well 
 settled. To make a disseisin effectual to give title under it to a 
 second disseisor, it must appear that tlie latter holds the estate 
 under the first disseisor, so that the disseisin of one may he con- 
 nected with that of the other. Separate successive disseisins do 
 not aid one another when several persons successively enter on 
 land as disseisors witliout any conveyance from one to another, or 
 any privity of estate between them, other than that derived from 
 the mere possession of the estate ; tlieir several consecutive pos- 
 sessions cannot be tacked so as to make a continuity of disseisin 
 of sufficient lengtli of time to bar the true owner of his right of 
 entry. To sustain separate successive disseisins as constituting a 
 continuous possession, and conferring a title upon the last disseisor, 
 there must ]iave been a privity of estate between the successive 
 disseisors. To create such privity, there mnst have existed, as 
 between the different disseisors, in regard to the estate of which a 
 title by disseisin is claimed, some such relation as that of ancestor 
 and heir, grantor and grantee, or devisor and devisee. In such cases 
 the title acquired bj' disseisin passes by descent, deed or devise. 
 But, if tliere is no sucli privity upon the determination of the pos- 
 session of each disseisor, the seisin of the trne owner revives and is 
 revested, and a new distinct disseisin is made by each successive 
 disseisor. This is the doctrine as gathered from the authorities by 
 Bigelow, J., in a case before the supreme judicial court of Massa- 
 chusetts, wherein it was decided that a wife has no such privity 
 of estate with her inisband in land of which he died in an adverse 
 possession to the real owner, that lier continued adverse possession 
 after liis decease can be tacked to liis, to give a complete title by 
 disseisin. It was declared that tlie husband occupied. the land 
 during his life, not by right of his wife, but by virtue of his own 
 act of disseisin. His wife could commit no act of disseisin till 
 her coverture ceased by his death. Upon his death, the seisin was 
 in his heir at law, or the seisin of the true owner revived, and the 
 subsequent disseisin by the wife was her own separate act, uncon- 
 nected with the previous disseisin of her husband. It was urged 
 by counsel that the right of the wife to dower in land of which 
 her husband died seised would create sufficient privity of estate 
 between them in regard to the land in question, to enable her to 
 connect his possession of it with her own. Eut the answer to this 
 suggestion was stated to be, that the right of dower confers no 
 
916 LkW OF ADVERSE ENJOYMENT. 
 
 title to any part of the husband's land after his death until assign- 
 ment of dower is made. Until then the wife has no seisin or right 
 of entry in any part of her husband's land, and the heir can •well 
 maintain his writ of entry against her, to which her claim of dower 
 "would constitute no defense, citing Park on Dower, 334, and Hil- 
 dreth x. Thompson, 16 Mass. E. 191. It is a mere riglit, whieli 
 does not ripen into a title until some speciiic portion is set out 
 and assigned as dower. If, therefore, such assignment would 
 create a privity of estate; it was thought to be very clear that 
 none such exists before assignment made, and hence, as to the 
 parcel of land in dispute, there was no privity between the wife 
 and the husband, and she could not connect her own disseisin 
 with that of her husband. {Sawyer v. Kendall, 10 Cash. E. 241. 
 And vide Ward v. Bartholomew, 6 Pick. E. 409. Allen v. HoUon, 
 20 ib. 458, 465. Melvin v. Proprietors of Zochs and Canals, 
 5 Mete. E. 15, 32. Wade v. Lindscy, 6 ib! 407.) It was subse- 
 quently held, however, by the same distinguished court, that the 
 husband might avail himself of his wife's adverse possession in 
 defense to a writ of entry brought against him by one to whom, 
 ■within the statutory limit, he had released the property. {Stone 
 T. Johnson, 4 Allen's E. 425. And vide Holton v. Whitney, 30 Yt. 
 E. 405. Smith v. Garsa, 15 Tex. E. 150.) 
 
 It has been held in the state of Texas, both in the state courts 
 and in the courts of the United States, that, when several persons 
 enter on land in succession, in order to make their possessions 
 availing under the statute of limitations, the successive tenants 
 must hold regularly through their predecessors ; and if they hold 
 independently, the continuity is broken. {Johnson v. Wash, 15 
 Texas E. 419. Christy v. Alford, 17 How. U. S. E. 601. Doswell 
 V. De La Lama, 20 ib. 29.) And the same doctrine is expressly 
 recognized in the states of Mississippi, Tennessee and Vermont. 
 {Holton, v. Whitney, 30 Yt. E. 405. Clarh v. Chase, 5 Sneed's E. 
 636. Murkins v. Blumenthal, 27 Miss. E. 198. Shaw y. Nicholay, 
 30 ib. 99.) While in the state of South Carolina it has been held 
 that a defendant cannot unite his possession with that of a previous 
 occupant, from whom he purchased, for the purpose of completing 
 the requisite statutory term, on the ground that any transmission 
 or mutation of land breaks the continuity of the possession ; al- 
 though it was decided that the possession of a tenant would bo 
 regarded as the possession of his landlord, within the spirit of the 
 
WSO CANNOT CLAIM ADVERSE POSSESSION. 917 
 
 statute of limitations. {Vide King v. Smith, 1 Eice's K. 10. 
 MazycJc V. Wight, 3 Brevard's K. 151. ^YilUams v. McAlily, 
 Cheeves' E. 200.) 
 
 In some cases it has been held that a purchaser of land sold on 
 execution may tack his possession to that of the defendant in the 
 execution, and thus make out an adverse possessory title under the 
 statute of limitations ; and this would seem to be in harmony with 
 the general doctrine. {Sohutz v. Fitzwater, 5 Barr's E. 126.) And 
 in Tennessee it has been held that the possession of an administra- 
 tor may be tacked to that of his intestate, in order to perfect hia 
 title by adverse possession {Moffit v. McDonald, 11 Humph. E. 
 457) ; although a contrary doctrine has been held in the state of 
 Maine. {Bullen v. Arnold, 31 Maine E. 583.) 
 
 In the states of Connecticut, Pennsylvania, North Carolina and 
 Tennessee, thei*e are decisions to the effect that the adverse pos- 
 sions of different occupants, though not proved to be connected, 
 if such possessions added together make up the entire term of 
 limitation, will bar an entry in an action by the person having 
 the true title. {Fanning v. Wilcox, 3 Day's E. 269. McCery v. 
 Diclcenson College, 5 Serg. & Eawle's E. 254. And vide Overfield 
 V. Christie, 7 ib. 177. Candler v. Lunsford, 4 Dev. & Batt. E. 
 409. Scales v. CocTcrill, 3 Head's E. 435.) Mr. Washburn lays 
 down the rule, which is in accordance with the general tenor of 
 the authorities, that, " in the case of successive holders of land, 
 after a disseisin committed by the first of them, the seisin thereby 
 acquired by him will not inure to the benefit of the others who 
 come into possession after him, unless there is a privity of estate 
 between them and him by purchase or descent. (3 Washb. on 
 Eeal Prop. 130.) 
 
 CHAPTEE LII. 
 
 WHAT PARTIES ARE PRECLUDED FROM SETTING UP AN ADVERSE POS- 
 SESSION TO DEFEAT THE TRCTE TITLE TO LAND EXCEPTIONS IN 
 
 FAVOR OF PARTIES BY REASON OF DISABILITIES — WHO MAY PLEAD 
 THE STATUTE OF LIMITATIONS AND SET UP ADVERSE POSSESSION. 
 
 Some cases in which it was declared that the possession of the 
 land could not be, ad verse, by reason of the reeognition of the true 
 
918 LAW OF ADVERSE ENJOTMENT. 
 
 title by the party holding the possession, have already been refer- 
 red to, but the subject must be more distinctly considered. It is 
 not always an easy matter to determine the exact natuie of the 
 claim under which the possession of land is taken, which may be 
 considered such a recognition of the title of the real owner, as 
 will preclude the occupant from setting up his possession as 
 adverse ; and the question should, therefore, be carefully examined, 
 and the doctrine of the authorities upon the subject properly 
 understood. It has been heretofore shown, at considerable length, 
 that a possession, in order to be adverse, must be hostile in its 
 inception ; and much that is there said has more or less applica- 
 tion to the point under discussion here; but it nevertheless 
 remains to consider, very briefly, the cases in which the true title 
 cannot be controverted by the party in possession, because of his 
 recognition of that title at tlie time of his entry. 
 
 In the first place, it is perfectly well settled that a tenant can 
 never set up his possession as adverse to his landlord, so long as 
 the relation of landlord and tenant continues to exist. This 
 proposition is too well understood to require argument or citation 
 of authorities, and, where the relation of landlord and tenant 
 exists, a conveyance by the tenant of the demised premises cannot 
 operate as the basis of an adverse possession so as to bar the land- 
 lord of his ejectment, wliether the grantee know of the demise or 
 not. The law seems to be well settled that, where the relation of 
 landlord and tenant is established, it attaches to all who may suc- 
 ceed to the possession, through or under the tenant, either imme- 
 diately or remotely. This doctrine is supported in numerous 
 cases. And where a tenancy exists, a purchaser who enters iinder 
 an absolute conveyance in fee, from the tenant, is considered as 
 entering as the tenant of the lessor ; although he may not have 
 known that his grantor held or derived his possession from the 
 lessor. {Jackson v. Davis, 5 Cow. R. 123, 129.) It has been held, 
 however, that this rule means the conventional relation of landlord 
 and tenant, where some rent or return is in fact reserved to the 
 former ; and not a relation arising from mere operation of law, as 
 when one makes a grant ; and by the omission of the technical word 
 " heirs," an estate for life only passes. {Jackson v. Ilarsen, 7 Cow. 
 E. 323.) Where a tenancy frorii year to year is shown to have sub- 
 sisted, and to be terminated by notice to quit, the possession, how- 
 ever long, accompanied with a claim of ownership as being entitled 
 
WHO CANNOT CLAIM AI)VER3M POSSESSION. 919 
 
 to a lease in fee upon rent, cannot be Bet np as adverse. ( Van 
 Rensselaer v. Van Wie, 23 Wend. E. 531.) And where a lease had 
 expired, and the tenant took a new lease, which was executed, but 
 did not include a certain four acres covered by the first lease, his 
 continued holding of the four acres cannot be claimed as adverse. 
 {Livingston v. Proseus, 2 Hill's R. 526.) An adverse possession 
 against the lessor, or his heirs or grantees, cannot be set up by the 
 lessee for a term, although the rent resei'ved be presumptively paid, 
 .or barred by the statute of limitations. The right of a tenant, or 
 one claiming under him, to set up an adverse possession, does not 
 depend upon the landlord's right to recover rent, but upon his 
 power to enter; accordingly, when the defendant in ejectment set 
 up an adverse possession in one who, "as was shown, entered under 
 the plaintifi''s ancestor by virtue of a lease for years, reserving an 
 annual rent, it was held, that the lease was sufficient to repel tlie 
 defense, though the circumstances were such as to warrant the 
 presumption of an extinguishment of the entire rent shortly after 
 the term commenced. {Failings. Schenck,Z'S.\\Vs,'R. Z4c4c.) And 
 possession under a lease for a thousand years, granted by a muni- 
 cipal corporation on a sale made by it for an unpaid tax or assess- 
 ment, is not adverse to the owner of the fee. In such case the 
 lessor does not claim the entire title, nor in opposition to the 
 whole world; but, in legal efl'ect, he is in possession, recognizing 
 another estate to take effect after his own estate is determined. 
 {Hoyt V. Dillon, 19 Barb. E. 644.) 
 
 Eut, as has been shown in a previous chapter, althoxigh a ten- 
 ant cannot deny his landlord's title, yet he may show that it has 
 tferminated, either by his own limitation or by conveyance, or by 
 opei'ation of law; after which he may disavow and disclaim the 
 tenancy, claim under another title hostile to that of his landlord, 
 and make his possession adverse. ( Vide JVellis v. Zathroj), 22 
 "Wend. E. 121.) 
 
 The purchaser at a sheriff's sale of an estate for life of the judg- 
 ment debtor holds his title in subordination and not in hostility 
 to the title of the reversioner, and an adverse possession against 
 the tenants in reversion cannot be predicated of it. The purchaser 
 on execution will not bo allowed to show title out of the defend- 
 ant, for he comes into exactly such estate as the debtor had ; and 
 if it was a tenancy, he will be a tenant also, and estopped in a suit 
 by the landlord from disputing his right in the same manner as 
 
920 LAW OF ADVERSE ENJOYMENT^ 
 
 the original tenant. It is obvious, therefore, that his possession in 
 such a case cannot be set up as adverse to the person under whdm 
 the debtor held his possession. {Jackson v. Graham,, 3 Caines' E. 
 188. Jackson v. Tower, 4 Cow. E. 599, 602. Jackson v. Parker, 
 9 ib. 73, 84.) And it has been held by the New York court of 
 appeals that, when a tenant in possession of a life estate in lands 
 purchases, of one of several cestui que trusts of the reversion, his 
 undivided interests tliereto, and suffers the land to be sold for a 
 municipal assessment and becomes the purchaser, he cannot hold 
 the land for his exclusive benefit. He is bound to protect the 
 interest of those who stand in the same relation with himself to 
 the property, and cannot take a title to their prejudice, but the 
 title he receives inures to the common benefit. He cannot bring 
 in a claim against the common property, and set it up adverse to 
 the title of the common cestui que trusts. {Bu7'hans v. Van 
 Zandt, 7 K Y. E. 523. And vide Home v. Foiida, 5 Johns. Ch. 
 E. 388. Holridge v. Gillespie, 2 ib. 30.) 
 
 A judgment debtor, continuing in possession of land which has 
 been held under execution against him, may be presumed to hold 
 under the title of the purchaser. Accordingly, it has been held 
 by the New York court of appeals that, where the debtor thus 
 remained for many years, claiming to hold under a senior judg- 
 ment, the deed to whom was not recorded, his 'possession was not 
 constructive notice, to a subsequent mortgagee under the junior 
 judgment, of his asserted title or that of his landlord. After 
 continuing in possession more than twenty j-ears, the occupant 
 defended a suit for a foreclosure of the subsequent mortgage, 
 ■without setting up any adverse title under the senior judgment ; 
 the court held that this was a renunciation of any former claim to 
 hold adversely to tiie title on which the mortgage was given. And 
 it was declared that his possession, or that of those succeeding to 
 it during his life-time, and after a sale under the mortgage, cannot 
 be deemed adverse so as to render void a conveyance by the pur- 
 chaser at such sale ; and the entire reasoning of the court is to the 
 effect that such possession was not adverse under the statute of 
 limitations, for the reason that the same was regarded as friendly 
 and not hostile to the title of the purchaser under tlie execution 
 against the original occupant. {Cook v. Travis, 20 N. Y. E. 400.) 
 "When the case was in the supreme court, it was said : " Peter 
 Young, while in possession, was estopped by the sale and convey- 
 
WBO CANNOT CLAIM ADVERSE POSSESSION. 921 
 
 ance under the Mowatt judgment from setting np another title in 
 liimself ; he was also estopped by the decree in the foreclosure 
 suit, to which lie was a party defendant; and it is proved tliat 
 Henry and Andrew J. Cutler went into possession about 3 850, 
 under an agreement with Peter Young to support him, he claim- 
 ing a life lease, as before stated, and who tlien surrendered the 
 possession. They were therefore estopped, in like manner with 
 Peter Young, from disputing the title sought to be enforced by the 
 plaintiffs." {Cooh v. Travis, 22 Barb. E. 338, 361.) This view 
 was sustained by the court of appeals, and the doctrine of the case 
 very clearly sustains the proposition that the judgment debtor 
 remaining in possession of land sold under the execution against 
 him will not be allowed, ordinarily, to set up an adverse posses- 
 sion against the piirchaser at the sheriff's sale. 
 
 An offer to purchase land by a party of another is such a recog- 
 nition of the title of the latter as will bar the defense of adverse 
 possession. Accordingly, it was held that, where the defendant, 
 having taken a lease of a parcel of land from the plaintiff, nego- 
 tiated with him for the purchase of the adjoining strip of land, 
 though he may show that the strip is included in the demise, he 
 cannot set up adverse possession. {JacTcson v. Britten, 4 "Wend. 
 K. 507.) And, generally, it may be affirmed, that one who, whi.e 
 in possession of land, recognizes the title of another, and offers to 
 purchase from him, cannot set up his own possession as adverse, 
 although he will be permitted to show title out of such person, 
 if the acknowledgment of title in him was the fruit of mistake or 
 imposition ; but he may not even do this if he entered the land 
 under him. {Jackson v. Guerden, 2 Johns. Cases, 353.) And 
 repeated application of the defend.ant to the lessor of the plaintiff, 
 to purchase the premises in question, has been held to afford a 
 presumption that he came into possession under such lessor. {Jack- 
 son V. Croy, 12 Johns. E. 427.) 
 
 If a party in possession, claiming under a deed, supposing that 
 there is some defect in the execution of it, applies to purchase the 
 title of a person claiming the same premises under a subsequent 
 deed for the purpose of strengthening or quieting his own title, 
 it has been held, that this is not an abandonment of his own title, 
 nor an acknowledgment of a superior title in another, so as to bar 
 the defense of an adverse possession. {Jackson v. Newton, 18 
 Johns. E. 355.) And it is well settled that a party in possession 
 116 
 
922 LAW OF ADVERSE ENJOYMENT. 
 
 of land claiming it as his own, under color of title in fee, must he 
 permitted to quiet such title by obtaining a conveyance of an 
 adverse claim in a strangei', without destroying his previous claim 
 of title as against other persons who do not claim under or through 
 such stranger, and of whose pretended claim the person in pos- 
 session never heard. And a person in possession may quiet his 
 title by taking a quitclaim from a stranger, and if the quitclaim 
 purports to be of the stranger's interest in the whole land, instead 
 of an undivided interest, it is no evidence of an acknowledgment 
 of an outstanding title in common with others standing in the 
 same position as such stranger, so as to preclude him from setting 
 up an adverse possession against such persons claiming to be ten- 
 ants in common with such stranger. {Northrop v. Wright, 7 Hill's 
 R. 476.) But a person who acquired his possession in such a 
 manner as to owe allegiance to the reversioners cannot set up an 
 outstanding title purchased by him to defeat their rights. A pos- 
 session acquired in subserviency to the title of the reversioners 
 cannot be defended, as against them, by asserting a new title sub- 
 sequently acquired. The general principle is, that one in posses- 
 sion may purchase in an outstanding title for the purpose of 
 strengthening his own. And the only qualification of this rule 
 is, that his possession must not have been taken under circum- 
 stances which preclude him from disputing the title of the party 
 claiming; and the qualification of the rule has its foundation in 
 the law of estoppel, which will not allow a man to do what, in 
 honesty and good conscience, he ought not to do. {Burhans v. 
 Van Zandt, 7 Barb. E. 91.) 
 
 A party in possession of lands, acknowledging the title of another, 
 is not estopped from subsequently disclaiming holding under such 
 title, if the original entry was not under the person in whom the 
 title is acknowledged ; nor is any other person, deriving the pos- 
 session from such tenant, estopped by such acknowledgment. 
 {Jaoleson v. Leek, 12 Wend. E. 105.) And a party in possession 
 of lands recognizing the title of a claimant, and agreeino- to pur- 
 chase, may subsequently deny such title, set up title in himself 
 and show that his acknowledgment was produced by imposition 
 or made under a misapprehension of his rights ; but a party enter- 
 ing into possession, under an agreement to purchase, cannot dis- 
 pute the title of him under whom he enters, until after a surrender 
 of the possession. So long as the ordinary relation of vendor and 
 
WBO CANNOT CLAIM ADVERSE POSSESSION. 923 
 
 vendee exists, the possession of tlie vendee cannot be adverse to 
 liis vendor. {Jackson v. Spear, 1 Wend. R. 401.) 
 
 The doctrine is well settled that a party in possession of lands 
 may bo permitted to protect himself against litigation by buying 
 in (flaims made by others, ■without invalidating his legal rights, 
 or subjecting himself to any allegiance to others. The rule is 
 otherwise, as between vendor and vendee before conveyance, and 
 between landlord and tenant. In both these cases the possession 
 must first be surrendered before the title can be questioned, or an 
 adverse possession setup. The rule, is now well established, that 
 there is no estoppel except where the occupant is under an obliga- 
 tion, express or implied, to restore the possession at some time, or 
 in some event. {Hill v. Hill, 4 Barb. K. 419.) 
 
 Although a tenant cannot question the right of his landlord, a 
 grantee in fee may hold adversely to the grantor, and there is no 
 good r'eason why he should not be at liberty to deny that the 
 grantor had any title. If he purchases and takes a conveyance in 
 fee, he owes no fealty to the grantor, and is chargeable with no 
 disloyalty in denying his title. He does not receive the possession 
 under any contract, express or implied, that he will ever give it up. 
 He takes the land to hold for himself, and to dispose of it at 
 pleasure. He owes no faith or allegiance to the grantor, and he 
 does him no wrong when he treats him as an utter stranger to the 
 title. It follows, therefore, that the grantee may set up an adverse 
 possession against his grantor, and claim the benefit of the statute 
 of limitations, under color of his conveyance. {Osterhout v. Shoe- 
 maker, 3 Hill's K. 513. And vide Watkins v. Ilolman, 16 Peters' 
 E. 25. Barker v. Salmon, 2 Mete. E. 32.) 
 
 Says "Washburn : "It may be remarked in passing, that no dis- 
 seisin of the tenant of a particular estate and occupation under it, 
 however long continued, will afiTect the right of the reversioner. 
 The latter may enter whenever the particular estate shall deter- 
 mine. The statute does not run against a reversioner till the 
 death of the tenant for life, when the latter has conveyed the 
 estate in fee." (3 Washb. on Eeal Prop. 132, 133. And vide 
 Miller v. Swing, 6 Cush. E. 34. Eayrnond y. Holden, 2 ib. 269. 
 Gemei v. Lynn, 31 Penn. E. 94. PinJcney v. Burrage, 30 N. J. 
 Law E. 21. Salmons v. Davis, 29 Mo. E. 176.) 
 
 One who enters into the possession of land under a deed which 
 he supposes conveys a fee, but which in fact only gives him an 
 
92i LAW OF ADVERSE El^'J0T!iIE2iT. 
 
 estate for the life of anotlier, on the death of such other, becomes 
 the reversioner's tenant by sufferance, and cannot set up tlie claim 
 of adverse possession under the deed against the reversioner's 
 grantee. {Learned v. Tallmadge, 26 Barb R. 443.) 
 
 AVhen the heir apparent conveys land by deed, with covenants 
 of warranty, and afterward inherits the property, he will be 
 estopped from setting up an adverse possession against his 
 grantee; but it has been held that a purchaser at the sheriff's 
 sale, imder a judgment against the heir, iinder such circumstances, 
 may claim an adverse possession against the grantee of such heir. 
 This is declared to be upon the ground that an estoppel does not 
 bind strangers. Tlie lieir, when he convej'ed, although he had no 
 title, by his conveyance recognized a title in his grantee, and war- 
 ranted the same to him ; but the purcliaser at the sheriff's sale is 
 a stranger in respect to the matter that is alleged as an estoppel 
 in the deed. He is not a party to it, and his title is in no way 
 derived from it. He relies upon no act of the grantor, performed 
 subsequent to the execution of the deed, to give validity to his 
 title, and has in no way recognized the title of the judgment 
 debtor's grantee. He is not, therefore, estopped from claiming an 
 adverse possession against the grantee of the judgment debtor. 
 {Jackson v. Bradford, 4 Wend. R. 619.) And it has been held 
 that the possession of one holding under a judgment debtor by a 
 conveyance subsequent to the lien of the judgment cannot be set 
 up as adverse to the purchaser of the premises at sheriff's sale 
 under such judgment. {Jackson v. Collins, 3 Cow. E. 89.) And 
 one who enters under a title from a party subsequent to a judg- 
 ment against him, tlirough which the title comes to the party 
 claiming in ejectment, cannot set up another title, but is estopped 
 from denying the title of the judgment debtor from whom he took 
 a conveyance and entered into possession. {Jackson v. Hinman, 10 
 Johns. R. 292. And vide Burhans v. Van Zandt, 7 IST. T. R. 523.) 
 
 It has been stated in another place that one who takes a contract 
 for the purchase of land is estopped from denying the vendor's 
 title, and he cannot, therefore, set up an adverse possession against 
 the owner of such title ; at least, this is the rule, until the vendee 
 has fully performed the contract on his part, and become entitled 
 to a legal conveyance. The vendee of land, however, may hold 
 adversely as to strangers. {Jackson v. Smith, 1 Cow. R. 717. 
 Vrqoman v. Shepherd, 14 Barb. R. 441. And vide Brotherson v. 
 
WMO CANNOT CLAIM ADVEBSE POSSESSION. 925 
 
 Jones, Lalor's Supp. 171.) But the vendee is not estopped from 
 denying tlie vendor's title where he himself was in possession at 
 the time of the purchase, nor where, though he entered under the 
 contract, he was deceived and imposed upon, nor, perhaps, where 
 both parties were mistaken in the law in supposing that the 
 vendoi*, as trustee, was empowered to sell. Where a man is in 
 possession of land as owner, claiming title, he is at liberty to pur- 
 chase the, land over again as often as claimants shall appear who 
 are not in possession, and thus quiet such claims and fortify his 
 title without being estopped from disputing the title of such sub- 
 sequent vendors, should it afterward become necessary for him to 
 do so. And, as a matter of course, therefore, in such cases, such 
 vendee will be permitted to set up his original possession as 
 adverse to his vendor. The general rule is, that, where one is put 
 in- possession of land by another, the former is not at liberty to 
 controvert the title of the latter until he has restored the posses- 
 sion so received, and placed the other party in as good condition 
 as he was before he parted' with the possession. But this principle 
 does not apply to the case of one in possession of land as owner, 
 claiming title, who purchases the land over again from another 
 claimant for the purpose of quieting his claim and fortifying his 
 own title. {Glen v. Gibson, 9 Barb. E. 634. Jackson v. LeeTc, 
 12 "Wend. E. 105. Jackson v. &pear, 7 ib. 401.) 
 
 "Where two or more persons have a joint claim to property, the 
 community of their interests creates a mutual obligation that 
 neither shall do any thing to the prejudice of the other. An 
 expenditure by one upon the subject of their common interest 
 inures to the beneiit of all ; and, on the other hand, all are bound 
 to contribute toward that expenditure. Neither will be permitted, 
 without tlie consent of the others, to buy in an outstanding title, 
 and appropriate the whole subject to himself, and tlius undermine 
 and oust his companion. " This," says Chancellor Kent, " 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 relationship of the parties 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 buj-s up 
 an outstanding incumbrance, or an adverse title, to disseise and 
 expel his co-tenant." ( Van Home v. Fonda, 5 Johns. Ch. E. 388.) 
 
926 LAW OF ADVERSE ENJOTMEKT. 
 
 And tlie same eminent jurist says, in another case : " It is a general 
 principle tliat, if a morgagee, executor, trustee, tenant for life, etc., 
 who has a limited interest, gets an advantage by being in posses- 
 sion or ' behind the back' of the party interested, in the siibject, 
 he shall not retain the same for his own benefit, but hold it in 
 trust." {Ilolridge v. Gillespie, 2 Johns. Ch. E. 30. And vide 
 Baker v. Whiting, 3 Sumner's E. 476.) These principles wonld 
 forbid tliat one tenant in common of real property should go into 
 possession of the common property, and then claim to hold the 
 same adversely to his companions ; and this he cannot do except 
 by some notorious act and claim of title. But, should one of two 
 tenants in common enter without claiming adversely to his co-ten- 
 ant, and afterward purchase his co-tenant's interest under a deed 
 from the sheriff, and then openly claim the entire title, liis pos- 
 session from that moment may be adverse. {Jackson v. Brink, 
 5 Cow. E. 483.) And, where a defendant purchased a lot of land, 
 and took a deed of the whole, in which the grantor stated himself 
 to be heir of the patentee, and took possession under it, bnt it 
 afterward appeared that the grantor had title only to one-ninth 
 part of the lot, as tenant in common, it was held a good adverse 
 possession of the whole lot. Although, in these circumstances, 
 the grantee turned out to be, in point of fa,ct, a tenant in common 
 with others, yet he had never recognized the title of liis co-tenants, 
 and hence his possession might be adverse. (Jackson v. Smith, 
 13 Johns. E. 406.) So, also, where A, claiming title to land by 
 descent, made a parol gift of the same to B, under which* B 
 entered, and afterward A conveyed the land to B, it was held 
 that, if the deed related back to the entry of B, there was an 
 adverse possession commencing in B ; and that, if it did not, still 
 as B, by virtue of the parol gift, became the tenant at will of A, 
 and his possession was to be deemed that of A, there was an 
 adverse possession commencing in A. {Jackson v. Ellis, 13 Johns. 
 E. 118.) And, where the heirs of the lessee in fee divided the 
 farm, and possession was held accordingly for more than the 
 period required by the s.tatute of limitations, though the parts 
 were unequal, and there was evidence that the original intention 
 was to make an equal partition, the court considered the posses- 
 sion adverse. {Jackson v. Long, 7 Wend. E. 170.) 
 
 The same general doctrine in respect to adverse possession as 
 between tenants in common applies also as between joint-tenants 
 
WSO CANNOT CLAIM ADVERSE POSSESSION. 927 
 
 and coparceners ; and tlie doctrine of adverse possession, as between 
 such persons, seems to be well settled. The general rule is, that 
 where one tenant in common, joint-tenant, or coparcener, enters 
 upon the premises notoriously as sole owner; or where such tenant 
 in common, joint-tenant, or coparcener, enters upon the common 
 property, as such, and afterward exercises such acts of ownership 
 over such property as amounts to a disseisin of the co-tenants (and 
 there can be no legal doubt that one tenant in common, joint- 
 tenant, or coparcener may disseise another), such possession will 
 be adverse from the moment that the co-tenants are thus disseised. 
 {Vide Presoott v. Nevers,A Mason's R. 334. Jackson v. Tihbetts, 
 9 Cow. E. 24. Jaclcson v. Moore, 6 ib. 706. Catlin v. Kidder, 7 
 Vt. E. 12. Eioard v. Williams, 7 "Wheat. E. 121. Lodge v. 
 Patterson, 3 Watts' E. 77. Leonard v. Leonard, 10 Mass. E. 231. 
 Clymer''s Lessee v. Dawhins, 3 IIow. TJ. S. E. 674.) And as a 
 general rule, it may be aiBrmed that, if one tenant in common, 
 joint-tenant, or coparcener show that he means to hold out his 
 co-tenants, and actually exclude them, it is an ouster, and his pos- 
 session becomes adverse. {Humbert v. Trinity Church, 24 Wend. 
 E. 587. Siglar v. Yan Riper, 10 ib. 414. Bracliett v. Norcross, 
 1 Greenl.' E. 89. JIargrave v. Powell, 2 Dev. & Batt. E. 97. 
 Thomas v. Garvan, 4 Dev. E. 223. Cloud v. Webb, Ib. 290.) 
 
 Mr. Angell states, as the doctrine of the cases to which he refers, 
 that "the relinqaishment and yielding up to one of several ten- 
 ants in common, by the disseisor,' after a disseisin of five years, of 
 all the right, seisin, possession, and betterments which tiie disseisor 
 had in and to the proportion of that tenant in common in the 
 premises, has the effect to put all the tenants in common in the 
 seisin and possession of their shares respectively, and to prevent 
 the operation of the statute of limitations against any of them prior 
 to that time." (Angell on Lim. 437. And vide Vaughn v. Bacon, 
 3 Shepley's E. 455. Farrar y. Eastman, 1 Fairfield's E. 191. 
 Creswell v. Altemus, 7 Watts' E. 566. Graffers v. Tottenham, 
 1 Watts' & Serg. E. 488.) And, with respect to the running of the 
 statute of limitations, it may be further afiirmed that the statute 
 never begins to run until the possession becomes adverse ; and if, 
 after the statute has begun to run, there is a breach in the chain 
 of possession, from that moment the statute ceases to run, and an 
 entirely new adverse possession must transpire in order to make 
 the statute availing ; so, also, if a party enters land without claim 
 
928 ZAW OF ADTEESE ENJOYMENT. 
 
 or color of title, and afterward obtain a colorable title, or notori- 
 ously and unequivocallj claims the title to the land, the adverse 
 possession will commence from that period. 
 
 Where the defendant in an action of ejectment entered into pos- 
 session niider, and afterward took a deed of the land from, the legal 
 owners, under whom the lessor of the plaintiff derived title by a 
 subsequent deed, the court held that the possession of the defend- 
 ant is to be considered as adverse from the date of his deed, and 
 the running of the statute of limitations will commence at that 
 date, and not at the date of the deed to the lessor of the plaintiff. 
 (Jaclison v. Newton, 18 Johns. E. 355.) And it has been held that 
 the riglit of a reversioner, or remainderman, is not affected by the 
 statute of limitations, if a particular estate existed when the right 
 accrued ; and if the husband be tenant by the curtesy initiate, 
 and the wife be disseised and die without entry, the statute does 
 not run against the heirs until tlie husband's death. (Jackson v. 
 Jolfnson, 5 Cow. R. 74. Jackson v. Schoonmaker, 4 Johns. E. 390.) 
 
 Another well-settled proposition in respect to tlie running of the 
 statute of limitations is, that the statute will run against all per- 
 sons, and no exception to the statute can be claimed, unless it is 
 expressly mentioned in such statute. " General words of a statute, 
 it is considered, must' receive a general construction ; and, unless 
 there can be found in the statute itself some ground for restraining 
 it, it cannot be restrained by arbitrary addition or retrenchment." 
 (Angell on Lira. 196. Bucklin v. Ford, 6 Barb. E. 393. The 
 Sam Slick, 2 Curtis' C. C. E. 480. IJowell v. Hair, 15 Ala. E. 
 194. ^2c7i/or(^ v. iracZe, 17 Vesey's E. 87.) And the doctrine of 
 the authorities very clearly is, that statutes of limitation are to be 
 strictly construed ; and where the statute makes no exception, the 
 court can make none on the ground of any inherent equity, or 
 because it may appear to be reasonable that the statute should not 
 run against any party in a given case. Even though the courts 
 of justice be shut by civil war, so that no action could be com- 
 menced, or writ sued out, yet the statute of limitations has been 
 held to continue to run. {Bickford v. Wade, supra. Dupliex v. 
 De Raven, 2 Vera. E. 540. Hall v. Wyhourn, 2 Salk. E. 420. 
 Aulry V. Fortescue, 10 Mod. R. 206.) The rule is explicit and 
 impressive, in enforcing the duty of all courts, both in law and 
 in equity, to render entire obedience to all the provisions of the 
 statute of limitations ; and all persons and classes are alike barred 
 
WBO BARRED BY ADVERSE POSSESSION. 929 
 
 by tlie statute, unless there is a saving clause in their favor. And 
 •wliere tiie statute does not in terms embrace a particular case, the 
 court will not extend its provisions to meet it, however dearly 
 the reason of the statute may comprehend it. That is to say, 
 every case must be brouglit within the letter or the spirit of" the 
 statute of limitations, or it is not affected by it. ( Vide Bodell v. 
 Janney, 4 Gilm. JR. 193. Grimes v. Holhins, 11 Ala. R. 356. 
 Beardsley v. Southmayd, 3 Green's N. J. R. 171. Taherrer v. 
 Brlntnall, 3 Ilarr. R. 262.) 
 
 Generally, where the action is commenced, or entry made, 
 before the statute of limitations has fully rim, and for any cause, 
 otiier than upon the merits, the plaintiff in the action become^ non- 
 suit, or a judgment in his favor is reversed, tiie statute provides 
 tliat a new action may be commenced, unaffected by the running 
 of the statute during the pepdency of the former action ; but this 
 rule never prevails, except in pursuance of express enactment ; 
 and the provisions of the statute in this respect are given in previ 
 ous chapters in which the statute of limitations is considered, and 
 may be found by reference to those chapters. So, also, as a gen- 
 eral rule, the statute of limitations does not run against persons 
 laboring under certain specified disabilities; but tiiis matter is 
 likewise regulated by express enactment, and tlie provisions of the 
 statute upon tliis subject, also, are given in the chapters relating to 
 the statute of limitations in the several states, and can be ascer- 
 tained by consulting those chapters. Some general observations, 
 however, may be made in respect to disabilities in connection with 
 the statute of limitations relating to real property, in this place ; 
 at the same time impressing upon the student, and the practitioner, 
 the necessity of examining the previous chapters where the subject 
 is treated more at length. 
 
 According to the construction which is generally given to stat- 
 utes of limitation in respect to exceptions on account of disabili- 
 ties, a party can only avail himself of the disabilities existing 
 when the right of action first accrued ; and, if several disabilities 
 exist together at the time the right of action accrues, the statute 
 does not begin to run until the party has survived them all. And 
 again, where the statute bar once begins to run against a party, no 
 subsequent disability will suspend or stop it; tliat is to say, when 
 the statute has begun to run, successive or cumulative disabilities 
 are of no effect. This doctrine is in harmony with the policy of 
 117 
 
930 LAW OF ADVERSE ENJOYMENT. 
 
 the statute of limitations, and is within the reason and spirit of the 
 decisions of the courts. It is well settled that, if an adverse pos- 
 session commence in the life-time of the ancestor, it will continue 
 to run against the heir, notwithstanding any existing disability on 
 tlie part of the latter, when the right accrues to him or her. 
 {Fleming v. Griswold, 3 Hill's K. 85. Jackson v. Schoonmaker, 4 
 Johns. E. 4.01, 402. Becker v. Van Valkenburgh, 29 Barb. E. 
 319.) Indeed, it has been repeatedly held tiiat, when the statute 
 begins to run, no subsequent disability, except in those cases pro- 
 vided for in the statute itself, will prevent or delay its duration, 
 even when the courts are shut, and there is no forum in which to 
 commence an action. {Yide Bucklin v. Ford, 5 Barb. E. 393, 
 396.) And in fact it seems doubtful whether an injunction will 
 prevent the running of the statute, after it has commenced. At 
 least there seems to be no cases liolding that an injunction out of 
 chancery would suspend the running of the statute; while the 
 contrary doctrine is strongly implied in many cases. Tlie party 
 to a suit in chancery has often applied to that court to restrain the 
 defendant from setting up tlie statute in an action at law. If the 
 pendency of the injunction woxild be a good answer to a plea of 
 the statute of limitations, such an application would not have been 
 necessary. ( Yide Anonymous, 1 Vern. E. 74. Gilbert v. Emer- 
 son, 2 ib. 503. Anonymous, 2 Atkyn's E. 1. Barker v. Millard, 
 16 Wend. E. 572.) 
 
 But Mr. Angell says that, " according to the opinion of a 
 learned English writer, if the right first accrue to a person who 
 is at the time under a disability, the statute will not begin to run 
 against him till he shall be free from disability ; and successive 
 disabilities, without any intermission, will continue to him a pro- 
 tection against being barred by nonclaim. That is, if the succes- 
 sive disabilities are in the same person on whom the right first 
 descended, he may enter within the time given by the statute 
 after the removal of the last disability." (Angell on Lim. 479, 
 referring to Preston on Abst. of Tit. 340.) Tiiis construction of 
 the statute, however, is not generally adopted, but the contrary 
 doctrine is usually held by the courts, both of this country and 
 of England. In an early case before the English court of king's 
 bench, the disseisin happened when the right owner was an infant, 
 and he died in infancy, leaving his infant sister his heir ; and the 
 court held that she was bound, notwithstanding her infancy, to 
 
WSO BARBED BY ADVERSE POSSESSION. 931 
 
 bring lier ejectment within ten years afiei' the death of her Iroiher, 
 as more than twentj' j'ears liad, in the whole, elapsed since the 
 death of the person last seised. Lord Ellenborongh, Cli. J., inti- 
 mated that the time allowed by the statnte for making an entry 
 miglit be indefinitely extended if any other construction were to 
 be admitted, and said : " There is no calculating how far it might 
 be carried by parents and children dying under age, or continuing 
 under ofher disabilities in succession." {Doe v. Jesson, 6 East's 
 R. 80.) And, in another celebrated case in which it is said that 
 the discussion was aided by illustrations drawn from reason, con- 
 venience, policj', precedents, and the principles of the common 
 law — in sliort, it was adorned by all the learning and eloquence 
 of Westminster Hall — the -same rule was declared. The argu- 
 ment and decision of the case established the doctrine that the 
 circumstance of the demandant being an infant when his ancestor 
 died was of no avail, because the exception in tlie statute gave 
 the excuse of infancy to those only to whom a right first accrued, 
 or who had a right at the time of the fine levied, and therefore the 
 plea of infancy did not apply to the case ; that no new right accrued 
 after the fine was levied, as the demandant's title was as heir to 
 his ancestor, in whom the right attached when the fine was levied ; 
 that public tranquillity was more to be favored than the nonage of 
 an infant, and that, if infancy closing on infancy was to be allowed 
 in succession, " the matter might possibly be delayed man}' hun- 
 dred years;" that, if a disability terminates, and a party, within 
 one month thereafter, becomes disabled by a new disabilitj', as 
 imprisonment, unsound mind, or in other degree, and so continues 
 all the five years, or, if at the end of the first month of the five 
 years he dies, leaving an infant heir, the statute continues to run 
 notwithstanding the subsequent disability. {Stowel v. Zonch, 
 Plowden's E. 353.) And the great principle of this case in Plow- 
 den, that the disability within the proviso must exist when the 
 right of entrjft accrues, and that a subsequent disability is of no 
 account, has been recognized and confirmed in several other Eng- 
 lish cases, and seems to be firmly established in the English courts. 
 ( Vide Doe v. Jones, 4 Term E. 300. Doe v. Shane, lb. 306, note. 
 Dxvpliex V. De Eoven, 2 Vern. E. 540.) 
 
 The principles of these cases have often been recognized by the 
 American courts. In an early case before the late court of chan- 
 cery of the state of New York, Chancellor Kent observed : " If 
 
932 LAW OF ADVEBSE ENJOYMENT. 
 
 disability could be added to disability, claims might be protracted 
 to an indefinite extent of time, and to the great injury and oppres- 
 sion of the country, according to an expression of Lord Eldon : 
 'Aright might travel through sinuosities for two centuries.' It 
 would be impolitic, as well as contrary to established rule, to 
 depart from the plain meaning and literal expression of the pro- 
 viso in the statute of limitations." And one of the head notes of 
 the case is to the effect that the disability that entitles the party 
 to the benefit of the proviso in the statute of limitations must be 
 existing at the time the right first accrues; so that, if during the 
 ten years allowed to an infant a subsequent disability, as coverture, 
 arises, the time continues to run notwithstanding such second dis- 
 ability. Successive or cumulative disabilities are not within the 
 policy or settled and sound construction of the statute. {Demared 
 V. Wyncoojp, 3 Johns. Ch. R. 129. And vide Willson v. Beits, 
 4 Denio's E. 201. Smith v. Burtis, 3 Johns. R. 129.) 
 
 An early case in the supreme court of Massachusetts is another 
 and very weighty decision on the same point. The plaintiff was 
 an infant, and before the termination of her infancy the disability 
 of coverture occurred, but the court held that the latter disabilitj^, 
 not existing when the right first accrued, was not within the pro- 
 viso, and that the party was bound to have brought her writ within 
 the given time after the first disability had ceased. {Eager v. The 
 Commonwealth, 4 Mass. R. 182. And vide Allis v. Moore, 2 Allen's 
 R. 306.) And similar decisions have been pronounced by the 
 supreme court of Connecticut. ( Vide Bush v. Bradley, 4 Day's 
 R. 298. Sanford v. Button, lb. 310. Bmice v. Woloott, 2 Conn. 
 R. 27. Griswold v. Butler, 3 ib. 227.) Although it seems that 
 a different doctrine is held in the states of North Carolina and 
 Tennessee. {Wilson v. Kilcannon, 4 Hayw. [Tenn.j R. 182. 
 Davis V. CooTce, 3 Hawkes' R. 608.) 
 
 A distinction, says Mr. Angell, was once attempted between 
 voluntary and involuntary disabilities in this respect, and it was 
 maintained that an involuntary disability, as insanity, occurring 
 after the statute had begun to run, would suspend its progress. 
 But Lord Kenyon, Ch. J., said he never heard it before doubted 
 whether, when any of the statutes began to run, a subsequent dis- 
 ability would stop their running. If the disability, he said, would 
 have such an operation on the construction of one of those statutes, 
 it would also on the others. And he was very clearly of opinion, 
 
WHO BARBED BT ADVERSE POSSESSION. 933 
 
 on the words of the statute of fines, on the unifonn construction 
 of all the statutes of limitation down to that time, and on the 
 generally received opinion of the profession upon the subject, that 
 this question ouglit not to be disturbed. It would bo mischievous, 
 he thought, to refine and make nice distinctions between the cases 
 of voluntary and involuntary disabilities ; but, in both cases, "when 
 tlie disability is once removed, the time begins to run. (Angell on 
 Lim. 478. And vide Frewell v. Collins, 3 Brev. E. 286.) 
 
 When lands are held adversely against tenants in common, one 
 of whom is within the saving clause of the statute, on account of 
 disability, the decisions are not unanimous, as to whether the 
 rights of the others are thereby saved ; but the better opinion is, 
 tliat they are not. (Jaclcson v. Bradt, 2 Gaines' E. 169. Carpen- 
 ter V. Sohermerhorn, 2 Barb. Ch. E. 314. Marsteller v. McClean, 
 7 Craneli's E. 156. Lewis v. BarJcsdale, 2 Brock. E. 192. Biggs 
 V. Dooley, 7 B. Mon. E. 236. Dickey v. Armstrong, 1 Marsh. E. 
 39. Turner v. Sohell, 2 ib. 384. Simpson v. Shannon, 3 ib. 362. 
 Moore v. Armstrong, 10 Ohio E. 11. Bronson v. Adams, Ib. 135. 
 Wade v. Johnson, 5 Humph. E. 117. Johnson v. Harris, 3 Hayw. 
 [Tenn.] E. 113. Woodward v. Clarke, 4 Strob. Eq. E. 167. Wells 
 V. Rayland, 1 Swan's E. 501. Jordan v. Thornton, 7 Ga. E. 517. 
 Pendergrast v. Gullatt, 10 ib. 218. Boolittle v. Blalceslee, 4 Day's 
 E. 265. Sanford v. Button, II?. 310. Riden v. Frien, 2 Murph. 
 E. 577.) But in two cases, at least, in Ohio, a difi'erent doctrine 
 has been held. {Mure v. Keefe, 10 Ohio E. 362. Lockwood v. 
 Wildman, 13 ib. 430.) And in the state of South Carolina, the 
 general doctrine is modified to the extent, that, when the disability 
 of one of the joint owners of land is infancy, the disability will 
 protect the others who are of full age. But Nott, J., said : " The 
 correctness of the rule may be questionable ; but this court does 
 not feel at liberty to innovate on a rule of law which has so long 
 been regarded as settled, and has been acted upon for a great 
 length of time. I do not know that our courts have permitted the 
 rights of co-tenants to be saved by any other disability than that 
 of infancy. The question in relation to other cases is still open for 
 consideration." {Lahiffe v. Smart, 1 Bailey's E. 192. And vide 
 Thompson v. Gaillard, 3 Eich. E. 418.) And the rule in South 
 Carolina seems also to be recognized in Kentucky. {Harlan v. 
 Seaton, 18 B. Mon. E. 312.) But the question as to when parties 
 are to be deemed within the saving clause of the statute of limita- 
 
934 LAW OF ADVERSE EXJ0T3IENT. 
 
 tions in respect to disabilities is often regulated by the express 
 terras of the statute itself; and lience the matter cannot be safely 
 determined, except by a reference to the chapters wherein the pro- 
 visions of the statute are given. Coverture is generally enumer- 
 ated as one of the disabilities which will prevent the running of 
 the statute of limitations ; but in many of the states, married 
 women are now authorized to sue for the recovery of their lands ; 
 and in some instances, it has been held that, since the statute 
 authorizing married women to sue, the disability of coverture is 
 abrogated ; and if the married woman was an infant, in such case 
 then the disability of both coverture and infancy was abrogated. 
 {Brown v. Cousens, 51 Maine R. 301. Thompson v. Craig, 24 
 Texas E. 583.) 
 
 In concluding the discussion of the subject of adverse possession 
 under the statute of limitations, it may be affirmed as a general 
 rule that no person can acquire title to real estate, as against the 
 true owner, by an adverse possession, who is incapable in law of 
 taking and holding lands; that is to say, the law will not, by its 
 own operation, cast a title to land upon one not competent to take 
 as a purchaser. But, notwithstanding the general rule, the statute 
 of limitations will furnish a defense to an action, by the true owner, 
 against any person in possession claiming the same adversely, 
 whether he is capable of holding land by purchase or descent, or 
 not. In an issue of adverse possession for the statutory period, 
 the question of actual tide is never tried. The plaintiff is barred 
 of his action, because he has been shut out of possession by an 
 adverse claimant for the whole term prescribed by the statute. As 
 Las been pertinently observed, the defendant in possession in such 
 a case has a right to stand on the defensive. The real question, 
 in all cases, respects, tlie plaintiff's right to the remedy, and not to 
 the defendant's title to the estate. The claimant's title may remain, 
 but he has lost his remedy, because the door of justice is closed to 
 Liin. And the supreme court of Massachusetts has gone even 
 further than this, and held that an alien may acquire title as 
 against the state by an adverse possession long enough to bar the 
 right of entry. {Piper v. Bickardson, 9 Mete. R. 155, 157.) But, 
 as a general thing, an alien cannot hold land as against the state, 
 although there may be nothing in the statute to prevent aliens 
 occupj'ing lands adversely to the titles of citizens ; and it has been 
 expressly held by the courts of New York, that, when citizens per- 
 
EFFECT OF ADVERSE POSSESSION ON GRANTS. 935' 
 
 mit aliens to hold their lands adversely for twenty years, they will 
 hd barred from recdvering them, in the same manner that they are 
 "wnen tliey permit citizens to hold them adversely for a like period. 
 {Overing v. Russell, 32 Barb. R. 263. Munro v. Merchant, 28 
 N. Y. R. 9.) So it wonld seem that, as a general, rule, any person 
 is capable of holding lands adversely so as to bar the true owner 
 of his action to recover the same, and, under the statutes of some 
 of the states, the rule will extend even to the title of the state. 
 
 CHAPTER LIII. 
 
 OF CONVEYANCES OF LAND WHILE IN POSSESSION OF PAETIES HOLDING 
 ADVERSELY TO THE GEANTOR — THE EFFECT OF ADVEESE POSSESSION 
 UPON SUCH GRANTS — CONCLUSION. 
 
 It now only remains, in conclusion, to consider very briefly the 
 subject of conveyances of real estate by parties put of possession, 
 and while the same is held adversely to tiie title of the grantor. 
 It is a general rule of the common law, that a conveyance of land, 
 by a person against whom it was advei'sely held at the time of 
 making it, is absolutely void ; and the reason of this rule, according 
 to an ancient authority, is " for avoiding of maintenance, suppres- 
 sion of right, and stirring up of suits ; and, therefore, nothing in 
 action, entry or re-entry can be granted over; for so, under color 
 thereof, pretented titles might be granted to great men, whereby 
 right might be trodden down and the weak oppressed, which the 
 common law forbiddetli, as men to grant before they be in posses- 
 sion." (Coke on Litt. 214, a.) 
 
 By old English statutes, it was prescribed that no one should 
 bny or sell unless the vendor had been in possession of the land, 
 or received the rents for the same during the year previous ; and, 
 in the reign of Henry the Eighth, it was enacted that no one 
 should sell or purchase any pretended right or title to land, unless 
 the vendor had received the profits thereof for one whole year 
 before such grant, or had been in actual possession of tlie land, or 
 of the reversion or remainder, on pain that both purchaser and 
 vendor should each forfeit the value of such land to the king and 
 the prosecutor. (32 Henry VIII, ch. 9.) Similar prohibitory 
 
030 LAW OF ADVERSE ENJOTJUENT. 
 
 laws have been generally adopted in this country, and in some 
 Etatej, as in Massaclmsetts, M-here there is no statute on the sub- 
 ject, chauipei'ty has baen held to be an oiFenss at common law, 
 and a conveyance by a disseisor is invariably held to be unlawful 
 and void. The statute of 32 Henry VIII, ch. 9, though never 
 re-enacted in Massachusetts, has been adopted in that common- 
 wealth in practice, and is therefore considered as part of the com- 
 mon law there. {Brinley v. Whiting, 5 Pick. R. 3i8, 353. And 
 vide Somes v. Skinner, 3 ib. 61, n. 3. Cleverlcy v. Whitney, 7 
 ib. 36. Loud v. Darling, 7 Allen's R. 205.) And so far as the law 
 declares that a convej-ance by a person out of possession, where 
 the land is held adversely to the grantor, is void, the rule is quite 
 generally recognized in all of the American states ; although in 
 some few of the states transactions of this nature are not held to 
 be unlawful. {Vide Iladduch v. Wilmarth, 5 N". II. R. 181. 
 Whittemore v. Bean, 6 ib. 47. Stoever v. Whitman, 6 Bin. R. 
 420. Cressen v. Miiler, 2 Watt's R. 272. Dramen v. Walker, 
 21 Ark. R. 539. Doe v. Stephens, 1 Houst. R. 31. Aldridge v. 
 Kincaid, 2 Littell's R. 393. Frizzle v. Beach, 1 Dana's R. 211. 
 Norman v. Lee, 2 Black's R. 499. Stewart v. Sweeney, 14 Wis. 
 R. 468.) So, also, in some instances, innovation has been made 
 upon the general rule, by allowing a person claiming title to lands, 
 possession of which is held adversely, to execute a mortgage of 
 such lands, which shall be valid and have preference over subse- 
 quent judgments, or mortgages executed by the mortgagor, in case 
 he shall ultimately recover title ; and sometimes the courts have 
 made an exception as to conveyances of lands held adversely, if 
 such conveyance was in pursuance of a contract entered into 
 before the adverse possession commenced. But it is not proposed 
 to give the statutes of all the states upon the subject, but only to 
 state some general principles which may be regarded as quite 
 universal in their application, whether there be or be not statutes 
 existing upon the subject. By the statute of ]Srew York, every 
 grant of lands is absolutely void, if at the time of the delivery 
 thereof the lands shall be in the actual possession of a person 
 claiming under a title adverse to that of the grantor. (1 Stat, at 
 Large, 690, § 147.) 
 
 Under the New York statute, it is quite obvious that a convey- 
 ance of lands which are at the time held adversely to the grantor 
 is inoperative and void ; and it would seem to follow from this 
 
EFFECT OF ADVERSE POSSESSION ON GRANTS. 937 
 
 doctrine that the title in sucli case remains in tlie grantor, and 
 that he may assert it in the same manner as though the deed had 
 not been made. Indeed, it is well settled, that, as between grantor 
 and grantee, and persons standing in privity with them, the deed 
 is operative and passes tlie title. {Jaclcson v. Demont, 9 Johns. E. 
 55. Livingston v. Perv, Iron Co., 9 Wend. R. 516. Van lichen 
 V. Benham, 15 ib. 164.) From the two propositions, that the 
 owner in such a case has parted with his title, and thattlie grantee 
 cannot assert it on account of the adverse holding whicli avoids 
 the deed, it has sometimes been supposed to result as a necessary 
 consequence tliat the title was extiuguisiied or lost. But it has 
 been repeatedly held that no such consequence follows. {Jackson 
 v. Brinclcerhoff, 3 Johns. Cases, 101. Jackson v. Vredenburyh, 1 
 Johns. R. 159. Williams v. Jackson, 5 ib. 489. Jackson v. Leg- 
 gett, 7 Wend. R. 377.) It may be laid down as a maxim of the 
 law, that a title which once existed must continue to reside some- 
 where ; it cannot be annihilated. The whole apparent difficulty 
 arises from an inaccurate statement of the consequence whiL-h results 
 from the adverse holding at the time the deed is executed. It is 
 often said in the books, without any qualification, that the deed is 
 void. But that is held to be only true in relation to the person 
 holding adversely, and those who afterward come in under him. 
 As to all the rest of the world the deed is valid, and passes the 
 title from the grantor to the grantee. The deed is void as against 
 the party who might otherwise be injured ; but it is good as to all 
 others. If the person who held adversely voluntarily abandon the 
 possession, there can be no doubt that the grantee may enter and 
 enjoy the land. Or, if after such abandonment a stranger enter, 
 thd grantee may bring ejectment and oust him. The stranger was 
 in no peril of being injured by the conveyance. His entry was 
 tortious, and he will not be allowed to cover himself with a shield 
 which belongs to another, between whom and himself there is no 
 legal privity. But, as against the person holding adversely, the 
 deed is utterly void — a mere nullity. There was an attempt to 
 convey, but the parties failed to accomplish the object ; and it is 
 held, that, as against the adverse possessor, the title still remains 
 in the original proprietor, and he may sue to recover the land. 
 {Livingston v. Proseus, 2 Hill's R. 526.) ' The true principle was 
 recognized qnite recently in the Kew York court of appeals, in a 
 case wherein it was decided, that a deed of lands held in adverse 
 118 
 
938 LAW OF ADVEBSE ENJOYMENT. 
 
 possession is good as against the grantee and his heirs, and against 
 strangers, though void as against tlie party in possession ; and, being 
 void as to the latter, an action will lie against him in the name of the 
 grantor notwithstanding such deed, but not in the name of the 
 grantee. A recovery therein, however, will innre to the benefit of 
 the grantee. {Hamilton v. Wright, 37 N. Y. E. 502.) And the 
 same doctj-ine is recognized in other states. ( Wade v. Lindsey, 6 
 Mete. R. 413, 414. Betsey v. Torrence, 34 Miss. K 138, 139. 
 Stockton, 1 Doug. E. 5G7. Wilson v. I^ance, 11 ITumph. E. 191. 
 Edwards v. Farkhurst, 21 Vt. E. 472.) This being the rale, the 
 question might arise as to the real object of the statute, or the 
 benefit which is to accrue by reason of the enactment. But it is 
 enough that the statute exists, and such is the construction given 
 to it by the courts. And in the state of Massachusetts, where the 
 common law prevails upon this subject, it has been held, that a 
 conveyance by a disseisor is unlawful and void, but that the title 
 remains in the grantor ; so that, in a writ of entry brought by him, 
 the tenant cannot plead that the demandant, after the disseisin, 
 made such an unlawful conveyance, and that the action is brought 
 at the ex]iense and for the use of the grantee in pursuance of an 
 unlawful agreement between him and the grantor. (Brinley v. 
 Whiting, 5 Pick. E. 348. And vide Wolcott v. Knight, 6 Mass. 
 E. 418. Everenden v. Beaumont, 7 ib. 70. Swett v. Poor, 11 ib. 
 549.) Said Parker, Ch. J., in the case of Brinley v. Whiting, 
 supra : " To establish such a defense would be to transfer the title 
 of the land from the demandant to the tenant, by way of punish- 
 ment for the attempt to convey it unlawfully ; but neither the 
 statute of 32 Henry VIII, nor the common law, establishes such 
 peiialty ; nor do we find that either in England, where the ofiense 
 probably was common at and after the passing of the statute, or in 
 this commonwealth, where the principles of that statute have been 
 60 far adopted, at least, as that the buying of disputed title, under 
 circumstances which show an intent to clisturb men in their posses- 
 sion, has been held criminal, or in New York, where the legislature 
 have re-enacted the statute of 32 Henry YIII, almost in its very 
 words, such a consequence has been attributed to the offense. By 
 the statute itself the culpable partiesfire made subject to forfeiture, 
 the one, of a sum equal to the price which he'contracted to receive, 
 and the other, of the value of the land so attempted to be pur- 
 chased, and the conveyance is rendered null and void. The title 
 
EFFECT OF ADVERSE POSSESSION ON GRANTS. 939 
 
 is left unaffected by the transaction." The result of this doctrine 
 is, that when a conveyance of land is made by a person against 
 wliora the land is held .adversely at the time of making it, the con- 
 veyance is simply null and void, and the grantor is not divested 
 of his original right by such conveyance; in other words, the title 
 to the land remains after the conveyance, precisely as it did before ; 
 and this may be regarded as the general rule, at least as against 
 the adverse holder of the land and those clainaing under him, 
 while as between the parties the title may pass from the grantor 
 to the grantee. 
 
 Under the statute of ISTew York, the supreme court of the state 
 has held, that a party taking a conveyance of real estate, which is 
 in the possession of a person claiming under a title adverse to that 
 of the grantor, receives no title by such conversance, and cannot 
 convey any title to another. It appeared that, at the time the deed 
 was executed, an individual was in possession of the premises as a 
 tenant under a third persori, who claimed the same adversely ; 
 and such tenant was occupying a log h'ouse thereon, and paying 
 rent, and he had been there over eleven years ; the court held that 
 the deed was void under the statute, and conveyed no title to the 
 grantee; and that the grantee having no title he could convey 
 none to another. {Wehder y. Van Sfeenhurgh, iQ Barb. R. 211. 
 And vide Lowber v. Kelly, 9 Bosw. E. 494. Burhans v. B%i,rhans, 
 
 2 Barb. Ch. E. 398.) .This is in accoi'dance with the general rule, 
 so far as the person holding adversely is concerned; but, as between 
 the grantor and grantee, and their privies, the conveyances were 
 effectual to change the title to the land from the original proprietor 
 to his grantee and his assigns. It is a principle running through 
 the book, that a feoffment upon maintenance or champerty is good 
 as between feoffor and feoffee, and is only void as against him who 
 has right. ( Vide Kenada v. Gardner, 3 Barb. E. 589. Poar v. 
 Ilorton, 15 ib. 485.) And it has been held that, a conveyance by a 
 disseisin being unlawful and void, the title remains in the grantor, 
 and a subsequent deed made by him to a third person, after he 
 has obtained possession, will convey his title. {Gibson v. Shearer, 
 1 Murph. E. 114. Dabi v. Baird, 3 Call's E. 475. And vide 
 Brinley v. Whiting, 5 Pick. E. 348. Meredith v Kennedy, 6 Litt. 
 E. 522.) Of course, a conveyance of land by the owner, while a 
 ■willful trespasser is in possession of it, is valid. (Bowee v. Brahe, 
 
 3 Duer's E. 35.) The doctrine generally held upon the subject is 
 
940 LAW OF ADVERSE ENJOTNENT. 
 
 simply in accordance with the civil law which " forbids a thing 
 which is litigious to be alienated." {AyUffe,'2,-i:^.) And the well 
 settled rule is, that, where an attempt is made to convey land which 
 is held adversely to the grantor, the title to the land is not affected 
 by the transaction. {Barry v. Adams, 3 Allen's E. 493. Loud 
 V. Darling, 7 ib. 206. Kincaid v. Meadows, 3 Head's E. 192. 
 Shortall V. IlincMey, 31 111. E. 219.) 
 
 It has been held by the New York court of appeals, that, to 
 avoid a deed of land nnder the statute against champerty, the 
 adverse possession mnst be under claim of some specific title, and 
 that a general assertion of ownership, irrespective of any particular 
 title, is insufficient. It was declared that nothing can satisfy the 
 language of the act but the existence of some spepific title under 
 which the party claims. This title may be good or bad, but there 
 must be at least a color of title opposed to the title of the grantor 
 in the deed ; and it was held, that there could be no such color of 
 title where the possession, was taken purely by mistake as to the 
 boundaries .of the deed. The case was, that a party occupied one 
 hundred and thirty' acres, having title to only one hundred acres, 
 but supposed the entire tract occupied by him to contain only one 
 hundred acres ; and the court held, that his possession of the thirty 
 acres was not so adverse as to render champertous a grant thereof 
 by the true owner ; although the rule was conceded to be other- 
 wise in respect to an adverse possession under the statute of limita- 
 tions. This is an important distinction worthy to be noted. 
 Selden, J., who delivered the opinion of the court, said : " No 
 reason exists for giving to the champerty act a liberal or enlarged 
 construction ; it is the relic of an ancient policy, which has been 
 treated with but little favor by either legislatures or courts in 
 modern times, and should not unnecessarily receive a construction 
 which would make it a serious obstacle in the way of transfer of 
 undisputed titles, and of the settlement of wild and uncultivated 
 lands." {Crary v. Goodman, 22 N. Y. E. 170, 177.) The same 
 high court held, in a later case, that mere occupancy of a lot, under 
 a claim bf right, in virtue of a graht which does not embrace it, 
 and made by parties who neither owned nor claimed it, is not 
 enough to defeat a transfer 'of title, on the ground of adverse pos- 
 Bession at the date of the conveyance. {Laverty v. Moore 33 N. 
 Y. E. 658.) So, also, it has been held quite recently, by the same 
 high court, that a conveyance of land carries with it, as appurten- 
 
EFFECT OF ADVERSE POSSESSION ON GRANTS. 941 
 
 ant, the right to the flow of water, in its natural channel, over the 
 land so conveyed ; and that the statute making conveyances of 
 land adversely held void does not apply to such appurtenant rights, 
 and they pass to the grantee, altliough a diversion of the water was 
 made before tlie convej'ance, and the right to such diversion is, at 
 the time of the conveyance, claimed by the party causing it. 
 {Corning v. Troy Iron and Nail Factory, 40 N. Y. K. 191.) And 
 it has been held, that possession under a deed void for fraud, or 
 executed without authority, by a person as attorney for the grantor, 
 the grantee knowing the fact, is not adverse so as to render another 
 conveyance from the grantor void. {Livingston v. Peru Iron 
 Company, 9 Wend. R. 390.) 
 
 The court of appeals of New York have held that a deed, con- 
 veying to the surviving plaintiffs, in an ejectment suit, so much of 
 the interest in the land of a co-plaintifl', who died pending tlie suit, 
 as had descended to two persons not plaintiffs, is not void by reason 
 of the possession of it by the defendant at its date. {Requa v. 
 Holmes, 26 X. Y. E. 338.) But it has heen held that an assign- 
 ment of a lease for lives, by the personal representatives of an 
 assignee of the lessee, is void, if tlie premises are, at the time, in 
 the actual possession of persons claiming title thereto adversely. 
 {Morton v. Yost, 33 Barb. E. 277.) 
 
 Where a lease gave the tenant six months after the expiration 
 of his term, for the purpose of removing buildings, etc., and 
 during such six months, and while the tenant was in possession 
 of the premises, the landlord conveyed the premises to a third 
 party, the supreme court of New York held, that the possession 
 was not adverse so as to render the deed void, as a conveyance 
 made while the grantor was out of possession. {Corning v. Troy 
 Iron and Wail' Factory, 39 Barb. E. 311.) And where a judg- 
 ment debtor, who remained in jDOSsessipn of land after a sale 
 thereof under execution against him, for more than twenty years, 
 under a lease for life from the purchaser, whose deed was not 
 recorded, resisted a suit for the foreclosure of a subsequent mort- 
 gage,- given upon title derived from a sale under a junior judg- 
 ment, but made no claim under such adverse title, the court of 
 appeals of the state of New York held, that he thereby renounced 
 such claim, and that his possession, or that of his successors, in his 
 life-time, was not adverse so as to render void a conveyance by 
 one deriving title' under the. mortgage. {Cook v. Travis, 20 N. 
 
942 LAW OF ADVERSE ENJOYMENT. 
 
 T. R. 400. Same Case, 22 Earb. E. 338.) So, also, the old court 
 of errors of New York held that, wliere the claimant, on beinj- 
 sued in ejectment, gives a cognovit, his subsequent possession can 
 not be regarded as adverse to the plaintiff; and hence, if the lat 
 ter, intermediate the cognovit and the entry of judgment, convey 
 to a third person, the conveyance will be upheld as valid, though 
 executed while the claimant was still in possession. (Kenada y. 
 Gardner., 4 Hill's R. 467.) And it has been held that under the 
 Tennessee statute of 1S21, the possession of a debtor, after tlie 
 sale of his land on execution, is not adverse to that of the sheriff's 
 vendee ; and that a sale of the land by such vendee, during such 
 possession, is valid. {Mitchell v. Lipe, 8 Yerg. R. 179.) 
 
 In the state of Kentucky, from 1798 to 1824, there was no law 
 making transfers unlawful while the land was held adversely to 
 tlie grantor; but in the latter year a statute was passed "to revive 
 and amend the champerty and maintenance law." It is held that 
 this statute applies in all cases where there is an actual possession 
 at tlie date of the conveyance, wJiether by title or right, or by 
 neither, if the possession is adverse to the vendor, though the 
 vendor may have had a constructive possession, and it protects a 
 party in possession of land that he claims, and renders void a sale 
 by any other claimant. {Yoang \. IV Campbell, Q J. J. Marsh. 
 E. 490. Clay v. Wyatt, lb. 584. Dulois v. Marshall, 3 Dana's 
 R. 336.) But the statute is held not to apply to conveyances 
 made in fuliillnient of an honest contract entered into before it 
 was enacted, where the adverse possession commenced after the 
 contract was made. {Saunders v. Groves, 2 J. J. Marsh. R. 407. 
 Norton v. Saunders, 1 Dana's R. 17. Moss v. Soott, 3 ib. 274.) 
 Nor does it prevent a conveyance where the occupant so holds that 
 he is bound to surrender possession of the land to the vendor 
 without questioning his title. A tenant holding under an execu- 
 tory contract is estopped to controvert the title of him under whom 
 he entered, and to show that his own possession is adverse ; and 
 hence he cannot claim the benefit of the statute. {Dubois v.' 
 Mitshell, 3 Dana's R. 336. Castleman v. Combs, 7 Monr. R. 176.) 
 JSTeither does the statute against conveying pretended titles apply 
 to devises by will. {Clay v. Wyatt, supra. May v. Slaughter, 
 3 Marsh. R. 509.) 
 
 It has been held by the courts of the state of JSTew York, that 
 the statutes of that state against buying and selling pretended 
 
EFFECT OF ADVERSE POSSESSION ON GRANTS. 943 
 
 titles to land cannot be applied to judicial sales. The statute, 
 except as to this penalty, is merely in affirmance of the common 
 law; and that never has been considered as preventing the 
 change of property by operation of law, or by a sale by the proper 
 officer of a court having competent jurisdiction to order such sale. 
 It does not come within the mischief intended to be guarded 
 against by the statute. The point was for some time in dispute, 
 but it is now settled by the highest judicial tribunal of the State. 
 Full effect is given to the statute by confining its operation to 
 voluntary conveyances between individuals, without extending it 
 to judicial sales. If a different construction were given to tlie 
 act, said Parker, J., it would not be in the power of a judgment 
 creditor to acquire the title of his judgment debtor by sale under 
 a judgment and execution, if the lands belonging to tlie debtor 
 happened to be held adversely. {Truax v. Thorn, 2 Barb. E. 156. 
 Tuttle V. Jackson, 6 Wend. E. 213. And vide 4 Kent's Com. 447.) 
 And the same doctrine is held in tlie state of Kentucky, where it 
 has been declared that a deed, made under a decree of a competent 
 court, is not within the reason of the statute, though another be 
 in adverse possession, and it has been held there in the broadest 
 terms, that the statute does not apply to official or judicial sales. 
 Any title of an execution debtor may be levied on and sold, 
 though an adverse claimant is in possession, but the purchaser 
 cannot sell it again while adverse possession is held by another. 
 {Saunders v. Groves, 2 J. J. Marsh. E. 407. Frizzle v. Beach, 1 
 Dana's E. 211. Jones v. Chiles, 2 ib. 35. Violett v. Violett, lb. 
 325. Dulois V. Marshall, 3 ib. 336.) 
 
 The possession of Indians, existing as an independent nation, is 
 not such adverse possession as will render void an alienation by 
 patentees of lands granted to them by the state. (Jacltson v. 
 Hudson, 3 Johns. E. 375.) And, in order to avoid a deed, on the 
 ground of an adverse possession at the time of its execution, such 
 adverse possession must be clearly made out by positive facts, and 
 not be left to inference or conjecture. ( ^Yie'kham v. Conldin, 
 8 Johns. E. 220.) And the possession which will avoid a deed for 
 champerty must be under claim of a title adverse to that of the 
 grantor in the deed sought to be avoided, so that a cestui que trust 
 cannot claim to hold adversely under his own trustee. {Clark v. 
 McLean, 41 Barb. E. 285.) 
 
 It seems to be decided that neither the common-law rule, nor 
 
944 LAW OF ADVERSE ENJOYMENT. 
 
 the statute, making conveyances of land lield'advei-sely void as 
 to the party in possession, applies to conveyances by the people of 
 the state or by public officers duly anthorized. Sucli conveyances 
 are not within the reason of the common-law rule, nor of the 
 statute; and, strictlj'^, there can be no adverse possession as against 
 the people ; the people of the state cannot be disseised. For this 
 reason, it has been held by the courts of New York and other 
 states, that a conveyance of land from the people to individuals is 
 valid, and gives to the grantees a right of entry, although the 
 premises are at the time actually held and occupied under a title 
 hostile to the title of the state. ( Ward v. JBartholomew, 6 Pick. 
 R. 409. Jackson v. Gurnaer, 2 Cow. E. 553. La Frombois v. Jack- 
 son, 8 ib. 589. The People v. The Mayor, etc., of New York, 28 
 Earb. R. 240. Allen v. Iloyt, Kirby's R. 221. Barney v. Cutler, 
 1 Root's R. 489, 491.) And, in the case of Barney v. Cutler, the 
 superior court of Connecticut say, that "guardians who give deeds 
 of the lands of their wards pursuant to a decree of a court of 
 chancery, executors, etc., who give deeds of the lands of the 
 deceased by order of the assembly or the court of probate, and 
 collectors who sell lands for payment of taxes by order of the law, 
 and the treasurer who gives deeds of lands belonging to the state, 
 cannot be said to be seised or disseised of the lands they under- 
 take to convey. Those who do not act in their own right, or by 
 virtue of any interest they have, but wholly by public authority, 
 cannot be considered as being in any sense within the statute. 
 Besides, most of them are under injunctions to convey in a limited 
 time, which would render the performance of their duty imprac- 
 ticable if it was necessary, in such cases, that possession should be 
 recovered before a sale would be valid." Indeed, the rule is quite 
 general, that an adverse possession will not affect conveyances 
 made by the people of a state, or sales made under a judicial 
 decree, or by a public officer acting in that capacity. {Yide 
 Ilanna v. Eenfro, 32 Miss. R. 130. Jarrett v. Tomlinson, 3 Watts 
 & Serg. E. 114. Hoyt v. Thompson, 5 K Y. R. 320, in addition 
 to the authorities before cited.) And the rule mav be reo-arded as 
 well nigh universal, that a deed by a party while disseised is void 
 against the one in possession holding adversely, but valid as 
 between the parties. Sometimes this is tlie rule on the ground 
 of champerty or maintenance, and sometimes by force of early 
 and uniform usage; but, whatever the ground of the rule, the 
 
EFFECT OF ADVEBSE POSSESSION ON GRANTS. 945 
 
 result is the same. {Vide Webb v. Thom.pson, 23 Ind. E. 432. 
 Park V. Pratt, 38 Yt. E. 563. White v. Fuller, lb. 204. Uni- 
 versity of Vermont v. Joslyn, 21 ib. 61. Sellech v. Starr, 6 ib. 198. 
 Edwards v. Pays, 18 ib. 473. ITs^ms v. May, 29 Ga. R. 124. 
 Greshain v. TTeSS, Ib. 320. Petsey v. Torrenoe, 34 Miss. R. 132. 
 Foxcroft V. Parnes, .29 Me. E. 128.) In some of the American 
 states, however, a conveyance of lands, while in the possession of 
 a party holding adversely to the grantor, will pass the grantor's 
 title as a valid deed ; although this is an exception to the general 
 rule. A deed under such circumstances is valid to pass the 
 grantor's title in the states of Arkansas, Delaware, Pennsylvania, 
 Maine, Illinois, South Carolina, Wisconsin, Ohio, and possibly in 
 a few others. But in New York, Massachusetts, New Hampshire, 
 Vermont, Connecticut, North Carolina, Kentucky, Indiana, Georgia, 
 Mississippi, and probably the most of the other states, excepting 
 those first enumerated, a conveyance of land iinder such circum- 
 stances is void as against the person holding the possession 
 adversely to the grantor upon the principles stated. 
 
 Tlie doctrine which makes a deed of land held by a person 
 adversely to the grantor invalid to pass the title as against the dis- 
 seisor is ordinarily extended to mortgages ; and as a general rule, 
 unless there is a statute to the contrary, a mortgage executed under 
 such circumstances would be void. In the state of New York, by 
 expi'ess provision of statute, the principle does not apply to mort- 
 gages. The statute declares that every person having a just title 
 to lands, of which there shall be an adverse possession, may execute 
 a mortgage on such lands ; and such niortgage, if duly recorded, 
 will bind the lands from the time the possession thereof shall be 
 recovered by the mortgagor or his representatives. (1 Stat, at 
 Large, 690, § 148.) And there are similar statutes in others of the 
 states. "Where a person gave a deed of lands held adversely, and 
 took a mortgage from the grantee to secure the purchase money, 
 tlie court held both deed and mortgage void. {Pepper v. Ilaight, 
 20 Barb. R. 429.) The transaction was held to be in contravention 
 of the statute which declares it to be a misdemeanor for* any per- 
 son to buy or sell, etc., any pretended riglit or title to any lands, 
 unless the grantor thereof shall have been in possession of the 
 same, or of the reversion or remainder, or have taken rents and 
 profits thereof for one whole year before such grant or conveyance. 
 (2 Stat, at Large, 713, § 6.) 
 119 
 
946 LAW OF ADVERSE EKJOTMEKT. 
 
 In the state of Massaclmsetts, where the common law doctrine 
 upon the subject is still recognized, it has been lield, that a mort- 
 gagee of land who is disssised cannot make a valid assignment of 
 his mortgage. Bigelow, Cli. J., in delivering the opinion of the 
 court, said: "The doctrine, that a disseisee, witliout entry and 
 delivery of the deed on the land, cannot convey any title which 
 will be valid as against the disseisor, is too well settled, and has 
 been too often recognized by this court to be now called in ques- 
 tion. {Brinley v. Whiting, 5 Pick. E. 348. Boston c& Worcester 
 Railroad v. SparJiawk, 5 Mete. 469. Foster v. Ahbott, 8 ib. 596. 
 Barry v. Adams, 3 Allen, 493. 4 Dane Ab. 6, 15, 25, 26.) 
 
 Tlie policy of the common law has been from an early period to 
 restrain and prohibit the conveyance of land by one who is not in 
 actual seisin and possession thereof. Inasmuch as such person has 
 only a right of entry, a transfer by him tends to violate the laws 
 against champerty and maintenance, and the purchase and sale of 
 j)retended and disputed titles. "Whether this ancient rule of law 
 is consistent witli the present mode of transfer of title to real prop- 
 erty, and is well adapted to the condition and wants of the com- 
 munity, is a question for the legislative bi-anch of the government. 
 While the rule continues in force, it is the duty of courts to recog- 
 nize and apply it." {Dadmun v. Landson, 9 Allen's E. 85, 88, 
 89.) This decision was pronounced in October, 1864; but it had 
 been held a long time before, that a mortgagee may be disseised 
 by a stranger, and that an exclusive and adverse occupation of the 
 estate under a claim of title would operate to disseise both mort- 
 gagor and mortgagee ; although it would seem that, in order to 
 disseise a mortgagee, there must be an actual ouster, and exclusive 
 occupation. {Poignand v. Smith, 8 Pick. R. 272. Hunt v. Hunt, 
 14 ib. 385.) And it seems that, until the rule was altered by 
 statute in Maine, an assignment of a mortgage in that state, after 
 a disseisin of the mortgagor, was held to be invalid and void. 
 ( Williams v. Baker, 49 Maine R. 428.) The rule in Maine upon 
 the subject is now, by statute, the same as in New York. 
 
 It may be added, that, as a general rule, there can be no adverse 
 possession against a reversioner ; it can only be against a person 
 entitled to possession, and, as a consequence of this rule, the rever- 
 sioner may convey his estate despite the possession. {Clark v. 
 Hughes, 13 Barb. R. 147. Austin v. Stevens, 24 Maine R. 526. 
 Yarney v. Stevens, 22 ib. 334.) 
 
CONCLUSION. 947 
 
 Such are the general principles in respect to the adverse enjoy- 
 ment of real property, and perhaps nothing further need be added. 
 A multitude of authorities might he referred to, iliustratin<j and 
 demonstrating these principles, hut those already cited are decisive, 
 and may he regarded as sufKcient. And here the discussion of tlie 
 whole subject of the law of ejectment and adverse enjoyment is 
 concluded. 
 
ALPHABETICAL INDEX. 
 
 A. 
 
 ABATEMENT, ,^oj;. 
 
 definition of 79 
 
 of the action of ejectment, when 377, 466, 576, 677, 786 
 
 plea of, In ejectment, not allowed, when 405 
 
 ACTION. (Fii(fo"EjECTMEijT.") 
 
 ADVERSE POSSESSION, 
 
 what constitutes .... 84, 103, 103, 113, 115, 123, 126, 144, 146, 152, 154, 161 
 
 782. 783, 809, 810, 858, 855, 947 
 
 title by, origin of 88 
 
 N^ what is a continuity of 100, 125, 127, 154, 159, 808, 810, 908, 917 
 
 doctrine of, in respect to boundary lines. . , . 100, 138, 898, 899, 903, 906, 907 
 
 defense in ejectment, when 100, 108, 110, 112, 144, 148, 808, 8fil, 917 
 
 934, 935 
 
 effect of, in respect to the people 104-107, 146, 784, 944 
 
 begins to run, when 107-110, 927, 928, 930, 931 
 
 runs against heirs, when 108, 924, 928, 930 
 
 feme covert, when 120, 121, 939-934 
 
 need not be under color of title, when 126, 137, 864, 869, 870 
 
 must be under color of title, when 130-133, 859, 874, 913 
 
 extent of 139, 149, 150, 152, 153, 809 
 
 tenant cannot set up, when 146, 876, 877, 880, 882, 918, 919 
 
 does not avoid a conveyance, when 148, 920, 936-939, 941, 944, 945 
 
 runs against tenant in common, when 199-303 
 
 question ot^ involved in the statute of limitations 851 , 852 
 
 general history and doctrine of. 853-i55 
 
 applicable in equity, when 854, 855, 867, 928, 939 
 
 what is color of title In respect to 130, 131, 863, 865, 870-874, 904 
 
 must be hostile in its inception 860, 870-883, 900 
 
 need not be under claim of valid title 861-869, 884, 887, 907 
 
 must be excllisive of any other right 865, 871, 873, 883-887 
 
 1>oua fides not necessary, when 865-869, 873. 887, 911 
 
 must be notorious, when 869, 870, 909, 910 
 
 to be taken strictly 875, 885, 886 
 
 in case of landlord and tenant. 876, 877, 880-882, 918, 919 
 
 vendor and vendee 876-878, 884, 924, 925 
 
 trustees 876-878,883,883,948 
 
950 ALPHABETICAL INDEX. 
 
 ADVERSE POSSESSION — Continued. pagk. 
 
 in case of license 879, 880 
 
 reversioner 881, 9i3, 928, 946 
 
 an easement 883, 836, 887 
 
 must be under claim of the entire title 883-887 
 
 marked by definite boundaries 888-895; 914 
 
 actual, when 888-891, 893, 894, 899, 000, 902, 906 
 
 constructive, may be, when 892, 893, 895-904, 909 
 
 doctrine of, in respect to residence 894, 89 ' 
 
 mixed possession 904, 905 
 
 mistaken possession 905-907 
 
 must be continued the statutory period 907, 908, 910-913 
 
 who precluded from setting up 917-928 
 
 who barred by 938-935 
 
 how affected by disabilities 929-934 
 
 effect of, upon conveyances 935-946 
 
 AFFIDAVIT, 
 
 of service of declaration of ejectment, requisites of . . . . 375, 422, 423, 425 
 
 430-436, 659, 660 
 ALABAMA, 
 
 statute of limitations in 155, 156 
 
 ejectment as between landlord and tenant in 306, 367 
 
 law in respect to wills in 524 
 
 action for the recovery of real property in 822-826 
 
 ALIEN, 
 
 may acquire title to land, when 117 
 
 may set up adverse possession, when 934, 935 
 
 AMENDMENT. 
 
 of declaration in ejectment 399-403 
 
 APPEARANCE, 
 
 in ejectment, and how made 441-463 
 
 ARKANSAS, 
 
 statute of limitations in 163, 164 
 
 ejectment as between landlord and tenant in 371 
 
 law in respect to wills in 526 527 
 
 action for the recovery of real property in 831-834 
 
 ASSIGNEE, 
 
 of rent, may have ejectment, when 47, 183-185, 343 
 
 of reversioner, may have ejectment, when gg 
 
 of bankrupt or insolvent, may have ejectment, when 174 
 
 bound by covenants, when Igg gf gg„ 
 
 of a lease, may have ejectment, when 179 
 
 liability of 208, 209 
 
 of mortgage, may have ejectment, when 217 et sea. 
 
 ATTACHMENT, 
 
 in ejectment, for disobedience to rule in 373 
 
ALPBABBTICAL lADEX. 951 
 
 ATTAINTED FELON, p^oe. 
 
 rights of. 203, 204 
 
 AWARD, 
 
 ejectment will lie on, wlien 204, 205 
 
 B. 
 
 BANKRUPT, 
 
 assignee of, may have ejectment, when 174 
 
 how declaration in ejectment served on 415, 416 
 
 ROILERY OF SALT, 
 
 ejectment for , 41 
 
 BOUNDARY, 
 
 adverse possession in respect to 100, 178, 898, 899, 903, 806, S07 
 
 evidence in case of 571-575 
 
 how proved 820, 8^1 
 
 c. 
 
 CALIFORNIA, 
 
 statute of limitations "In 143-145 
 
 ejectment as between landlord and tenant in 372, 373 
 
 law in respect to wills in 522, 523 
 
 action for the recovery of real property in 761-769 
 
 CASUAL EJECTOR, 
 
 in ancient practice 378 
 
 judgment against, by default 430, 436-441, 800, 801 
 
 when opened 440, 441 
 
 object of. 800 
 
 CERTIORARI, 
 
 allowed in ejectment, when 375, 37G 
 
 CESTUI QUE TRUST, 
 
 may have ejectment, when 57, 64, 75 
 
 CHAPEL, 
 
 ejectment for 43 
 
 CHURCH, 
 
 ejectment for ^ 
 
 CHURCH LANE, 
 
 ejectment for 539, 540 
 
 COAL MINE, 
 
 ejectment for 4* 
 
 COLORADO, 
 
 ejectment as between landlord and tenant in 360. 361 
 
 action for the recovery of real property in 749-756 
 
 COLOR OF TITLE, 
 
 what is so regarded u ... 130, 1 31, 159, 882, 8G5, 870-874, 904 
 
952 ALPHABETICAL INDEX. 
 
 COMMON, P^B=. 
 ejectment for 43 
 
 CONDITION'S, 
 
 when broken, ejectment will lie, when 179-185 
 
 in a deed, who may take advantage of. 180, 183 
 
 in leases, doctrine of 255-358, 277-390 
 
 CONNECTICUT, 
 
 for what ejectment will lie in .'. .; 55, 56 
 
 statute of limitations in 120-123 
 
 ejectment as between landlord and tenant in 337-339 
 
 law in respect to wills in 517, 518 
 
 action for the recovery of real property in 654-657 
 
 CONSENT RULE, 
 
 in ejectment 456-463, 801, 803, 816 
 
 CONVEYANCES, 
 
 of land, how construed 569, 571 
 
 how affected by adverse possession 148, 920, 935-946 
 
 COPYHOLD, 
 
 estate by 173 
 
 CORPORATION, 
 
 bound by statute of limitations 126, 140 
 
 may have ejectment, when 186-193 
 
 aggregate, what is 187 
 
 declaration In ejectment by 890 
 
 service of process in ejectment on 4ig 
 
 COSTS, - 
 
 in ejectment, plaintiff to pay, when 466 
 
 rules in respect to 586-588, 609, 610 
 
 COVENANTS, 
 
 run with the land, when 182-185, 208, 209 
 
 in leases, doctrine of 255-258, 277-390 
 
 how to be construed 279-290 
 
 D. 
 
 DECLARATION, 
 
 in ejectment. . . 374, 379-404, 613, 616, 655, 658, 661, 663, 734, 738, 739. 835 
 
 considered as process, when 379 455 
 
 in ejectment, entitling of ggO 
 
 venue, how laid in ggj 
 
 demise in 383-393, 683 
 
 description of lands in 398-397, 653, 661, 835 
 
 entry, how charged in 397 395 
 
 ouster, how charged in 399 399 
 
 amendmentsof 385,893,399-403 
 
 service of 410-429,815 
 
ALPHABETICAL INDEX, 953 
 
 DECLARATION — Continued. paqb, 
 
 in ejectment, necessary averments in. . 613, 61G, 655, 661, 602, 730, 724, 738 
 
 7^9, 763, 764 
 
 forms of 788,814, 821 
 
 requisites of, by statute. ( Tide " New York," etc.) 
 DEDICATION, 
 
 of land, to the public, when valid 725, 726 
 
 DEFENSE IN EJECTMENT, 
 
 equitable, when allowed 69 
 
 (Fide "Ejectment, Pleas IN.") 
 
 DELAWARE, 
 
 when ejectment will lie in 61, 62 
 
 statute of limitations in 124 
 
 ejectment as between landlord and tenant in 3C3, 363 
 
 law in respect to wills in , 520 
 
 action for the recovery of real property in 681-683 
 
 DEMISE, 
 
 in ejectment, sufficiency of 382-393 
 
 ( Vide " Lease.") 
 
 DESCENT CAST, 
 
 . doctrine of 79-87,857 
 
 not applicable in ejectment, when 87, 104, 114, 117, 135, 138, 143 
 
 DEVISEES, 
 
 may have ejectment, when .*. . . 54, 55, 178, 179 
 
 proof by, in ejectment 495-528 
 
 DISABILITY, 
 
 effect of, under statute of limitations 96, 97, 99, 104, 108, 116, 929-934 
 
 ( Vide " Limitation.") 
 
 DISCLAIMER, 
 
 of tenancy 323-225 
 
 DISSEISIN, 
 
 action of 56-65 
 
 what is 79, 80, 83-87, 112, 856, 915 
 
 subject of election, when 81-83, 856, 857 
 
 (Ft<Je "Ouster.") 
 DOWER. 
 
 ejectment will lie for, when 63, 66, 69, 172, 916 
 
 affected by statute of limitations, when 109, 114, 153 
 
 ( Vide " New York," etc.) 
 
 E. 
 
 EASEMENT. 
 
 cannot be recovered by ejectment 41 
 
 EJECTMENT, 
 
 origin and nature of the remedy by 33-35 
 
 object of the remedy by 86, 51, 53, 77 
 
 120 
 
954 ALPHABETICAL INDEX. 
 
 EJECTMENT — COKTINUED. ' fask; 
 
 the action of, will lie wlien ■ 36-70 
 
 what may be recovered by • 36-70 
 
 , the action will not lie. when 37-43 
 
 what title will support the action of ... . 43, 44, 51, 08, 70-78, 165-205, 378 
 
 773, 774 820 
 
 what may he recovered by, in the several states 44-70 
 
 mortgage? may have, when 41, 45, 50, 51, 54r-56, 63, 67, 169-173, 217 
 
 218, 335 
 
 not have, when 45, 46 
 
 as between landlord and tenant 46, 47, 306-373, 334-373, 413 
 
 who may be parties to the action of 53, 167-205, 378, 411, 700, 773, 774 
 
 783, 820 
 
 ancient practice in 373-379 
 
 declaration in 374, 379-403, 613, 616, 655,658, 661, 663, 734, 738-739 
 
 notice to appear in 374, 375, 404-410 
 
 service of the declaration in 410-429,613,616. 655 
 
 who must be made defendant in 343, 411, 700, 783 
 
 notice of sen-ice of declaration in, to landlord 429, 430 
 
 aflSdavit of service of declaration in 430-436 
 
 judgment against the casual ejector in, by default 427, 486-411 
 
 by default in, will be opened, wlien 440, 441 
 
 appearance of the defendant in 441-^6 
 
 the consent-rule in 456-463, 801, 802, 816 
 
 the plea in 55,463-471 
 
 the evidence in 71, 78, 571-579 
 
 the trial in 576-579 
 
 the verdict in 579-582 
 
 the judgment in 50, 55, 65, 582-586, 593 
 
 the costs in 586, 588, 609, 610 , 
 
 the execution in 588-591 
 
 writ of error in 591, 593 
 
 second action, when allowed . . . ., 592, 593 
 
 staying proceedings in 593-599 
 
 practice in the action of, in England 599-610 
 
 the several states 611-837 
 
 ELGEIT, 
 
 tenant by, may have ejectment, when 170, 177, 218 
 
 proof of, in action of ejectment 538, 529 
 
 ENGLAND, 
 
 statute of limitations in 89-97 
 
 tenant in, may have ejectment, wlien 201 
 
 ejectment as between landlord and tenant in 261-36!) 
 
 ancient practice in ejectment in. 373-378 
 
 practice in the action of ejectment in 410, 599-610 
 
 land in respect to wills in .* 500-504 
 
 ENTEY, ■ , 
 
 the writ of 175, 170 
 
 right of, in ejectmeat 80,103,176-178,318 
 
ALPHABETICAL INDEX. 955 
 
 ENTRY — Continued. p^oe. 
 
 lands recovered 'by writ of, when 47-49, 53-54 
 
 in declaration in ejectment, how charged 397, 398 
 
 KQUITABLE TITLE, 
 
 sufficient to support ejectment, when 58, 75, 76, 565, 825 
 
 insufficient to support ejectment, when, 50-53, 59, 63, 63, 67, 74, 773, 794, 795 
 
 will defeat ejectment, when 565, 563, 731, 738, 765, 766, 785, 790 
 
 no defense in ejectment, when 794, 795 
 
 ERROR, 
 
 writ of, in ejectment 591, 593 
 
 ESTOPPEL, 
 
 available in ejectment, when 74, 166, 530, 540-549, 83G 
 
 as between mortgagor and mortgagee 540-549 
 
 as betwetn landlord and tenant 549-557, 811-813 
 
 vendor and vendee 558, 559, 568 
 
 EVIDENCE, 
 
 of the plaintiff in ejectment 471-560 
 
 of location of premises 474, 475 
 
 of defendant's possession in ejectment 473, 473 
 
 *-*'' of ouster, when necessary 476-483 
 
 of claimant's title, when no privity exists 483-543 
 
 by heirs at law 483-493 
 
 by devisee 495-528 
 
 under execution 61, 67, 177, 178, 528-535, 773, 773 
 
 796, 808, 820, 823, 834 
 
 under tax sales 585-588 
 
 by guardian 538, 539 
 
 in case of church lands 539, 540 
 
 ordinary grant 540-543 
 
 of pedigree ^ 485-493 
 
 of marriage 486-490 
 
 of legitimacy • • • 493, 5(il, 563 
 
 of identity '• 493-495 
 
 of due execution of wills 496-499 
 
 in England 500-504 
 
 in the several states 504-528 
 
 of claimant's title when a privity exists 543-559 
 
 in case of mortgagee 543-549 
 
 landlord 5497557 
 
 vendor 558, 559 
 
 by the defendant in ejectment 560-566 
 
 character of, in ejectment 566-576, 810, 811, 82S 
 
 'F'"^!^' C UT 10 X 
 
 proof when party claims under CI. 67, 177, 178, 538, 535, 773, 773, 796 
 
 808, 830, 833, 834 
 m ejectment, form and effect of 588, 591, 773, 773 
 
 EXECUTOR, 
 
 may have ejectmeiit, wlien .44,00 
 
056 ALPffAUSTICAL IXVEX. 
 
 F. 
 FEE SIMPLE, . MOK. 
 what is 48 
 
 FEE TAIL, 
 
 wliat is 48 
 
 FISHERY, 
 
 ejectment will lie for 43 
 
 FLORIDA, 
 
 statute of limitations in 154, 155 
 
 ejectment as between landlord and tenant in 866 
 
 law in respect to wills in 534 
 
 action for the recovery of real property in 831, 823 
 
 FORFEITURE, 
 
 of lease, doctrine of. 168, 254-318 
 
 for non-payment of rent 253-277 
 
 non performance of covenant 277-296 
 
 not favored in law 273, 281, 288 
 
 when waived 273-277, 312-317 
 
 who may take advantage of. 296-303, 811, 813 
 
 FREEHOLD, 
 
 what is 43 
 
 G. 
 
 GEORGIA, 
 
 statute of limitations in 153, 154 
 
 ejectment as between landlord and tenant in 366 
 
 law in respect to wills in 524 
 
 action for the recovery of real property in 813-821 
 
 GUARDIAN, 
 
 may have ejectment, when 173, 174, 538 
 
 proof by, in ejectment 538, 539 
 
 H. 
 
 HABEAS CORPUS, . 
 
 allowed in ejectment, when 375, 876 
 
 HEIE, 
 
 may maintain ejectment, when 40, 60, 167, 180 
 
 proof by, in ejectment 483-493 
 
 takes ancestor's lands subject to debts 826 
 
 HERBAGE, 
 
 ejectment for 89, 58, 54 
 
 HEREDITAMENTS, 
 
 corporeal, ejectment for. 37 
 
 ' incorporeal, ejectment will not lie for. 37, 41, 68 
 
ALPBABETICAL IlfDEX. 957 
 
 HIGHWAY, 
 
 FAOB. 
 
 ejectment will lie fop the soil of, when 89, 53, 57, 63, 08, 09 
 
 HUSBAND, 
 
 may have ejectment for wife's land, when 168 
 
 I. 
 
 ILLEGITIMACY, 
 
 of claimant in ejectment, when a defense 561 
 
 ILLINOIS, ^o^wo.^ 561,563 
 
 ejectment will lie in, when 65, 06 
 
 statute of limitations in 138-132 
 
 ejectment as between landlord and tenant in 351-353 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in. 701-713 
 
 INDIANA, 
 
 ejectment will lie in, when 64, 05 
 
 statute of limitations in 126-128 
 
 ejectment as between landlord and tenant in 849-331 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in 693-701 
 
 INTRUSION, 
 
 what is 70 
 
 IOWA, 
 
 ejectment will lie in, when 68-70 
 
 statute of limitations in 137, 138 
 
 ejectment as between landlord and tenant in 356 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in 737-733 
 
 ISSUE, 
 
 in ejectment, form of. 466, 467 
 
 when regarded as joined 467, 676, 677 
 
 J. 
 
 JOINT TENANTS, 
 
 may have ejectment, when 53, 54, 56, 60, 09, 199-203, 389, 470-483 
 
 difference between, and tenants in common 331, 333, 887 
 
 JUDGMENT, 
 
 in ejectment, when to be moved for 337, 436-441 
 
 will be opened, when 429, 430, 440, 441 
 
 by default against the casual ejector 486-441. 671 
 
 will be opened when . . 440, 441 
 when final.. 50, 53, 393, 631-635, 679, 680, 712, 742, 775. 847 
 
 form of 54, 55, 65, 582-586 
 
 effect of 584-586, 593, 631-635, 679, 680, 683, 683, 686, 713 
 
 736, 740-743, 767, 775, 776, 791, 806, 810, 836 
 
 in respect of mesne profits. 671, 775, 776. 786, 790 
 
 806, 836, 845 
 
958 ALPBABETICAL INDEX. 
 
 K. 
 
 KANSAS, PAGK. 
 
 statute of limitations in 189, 140 
 
 ejectment as between landlord and tenant in 85S-3t>0 
 
 law in respect to wills in 522 
 
 action for the recovery of real property in 742-746 
 
 KENTUCKY, 
 
 statute of limitations in 159-161 
 
 tenants in, may have ejectment, when , 200, 201 
 
 ejectment as between landlord and tenant in 368-869 
 
 law in respect to wills in 525, 526 
 
 action for the recovery of real property in 787-791 
 
 L. 
 
 LAND, 
 
 what is embraced by this word '. 33 
 
 LANDLORD, 
 
 may have ejectment, when 46, 47, 59, 206 et seq. 
 
 tenant cannot dispute title of, when 166, 549-557, 81 1-8 1 3 
 
 may impose conditions in lease, when 254r-258 
 
 may declare lease forfeited, when 258-296 
 
 evidence in action of ejectment by 549-557 
 
 (Vide " Landlord and Tenant.") 
 
 LANDLORD AND TENANT, 
 
 ejectment as between 206-373 
 
 the relation of, how created 207 
 
 leases between, doctrine in respect to 209-211 
 
 notices to quit between, doctrine of 211-217, 226-253 
 
 leases between, when forfeited for non-payment of rent 254-273 
 
 breach of covenant 277-296 
 
 leases between, who may take advantage of forfeiture of. 296-303, 311, 313 
 
 when surrendered 318, 823 
 
 ejectment as between, in England 261-269 
 
 New York and the New England states. 324-339 
 
 remaining Middle and Western states . . 862-373 
 
 evidence in action of ejectment between 549-557 
 
 LEASE, 
 
 rules In respect to 206-211, 255-258, 277-290 
 
 provisos in 254-290 
 
 conditions and covenants in 255-258, 277-290 
 
 when forfeited 168, 254r-318 
 
 forfeiture of, who may take advantage of 296-303, 311, 313 
 
 generally 308-318, 369 
 
 surrender of 318-823 
 
 to laborer, how terminated 369 
 
 in the several states 824-373 
 
 in ejectment, how charged in declaration 382-393 
 
ALPSABETtCAL lA'DEX. 959 
 
 LIFE ESTATE, woa 
 
 what is 48-49 
 
 LIMITATION, STATUTE OF, * 
 
 effjctual as a source of title, when 88 
 
 extends to incorporeal hereditaments 88 
 
 the law of England S9-97 
 
 of England, possession under 90, 113 
 
 admission of title under 90, 91 
 
 hegins to run, Avhen 91-95, 115, 927, 938 
 
 reversioners, when barred by 93, 94, 98. 109. 117, 118 
 
 running of, as against tenants 93-95, 98, 99 
 
 personal representatives 95, 96, 98 
 
 ecclesiastical persons . . 96, 99, 108, 109 
 111,113, 114,929-984 
 
 running of, as against persons under disabilities 96, 97 
 
 the people 101, 146, 784 
 
 the law of the province of Ontario 97-101 
 
 the several states 101-165 
 
 wife barred by, when 151, 156 
 
 ( Vide "Adverse Possession," " New Yoke," etc.) 
 
 LOUISIANA. 
 
 statute of limitations in 161-163 
 
 ejectment as between landlord and tenant in 369-371 
 
 law in respect to wills in 536 
 
 action for the recovery of real property In 830, 831 
 
 the petitory action in 870, 871 
 
 LUNATICS, 
 
 real property of, how recovered 302, 203 
 
 service of process in ejectment on 41S 
 
 M. 
 
 MAINE, 
 
 when ejectment will lie in 47-49 
 
 statute of limitations in 110-113 
 
 leases in, when forfeited 305 
 
 ej eetment as bet ween landlord and tenant in 33 1 , 332 
 
 law in respect to wills in . .^ 515, 516 
 
 action for the recovery of real property in 636-641 
 
 MAKEIAGE, 
 
 evidence of 486-490 
 
 MARYLAND, 
 
 when ejectment will lie in 63, 63 
 
 statute of limitations in 134, 135 
 
 ejectment as between landlord and tenant in 363 
 
 law in respect to wills in 520 
 
 action for the recovery of reafproperty in 769-776 
 
960 ALPHABETICAL INDEX, 
 
 MASSACHUSETTS, tabs. 
 
 ■when ejectment will lie in 52-54 
 
 statute of limitations in 116-119 
 
 leases in, when forfeited ' 305 
 
 ejectment as between landlord and tenant in 335, 336 
 
 law in respect to wills in 516, 517 
 
 action for the recovery of real property in 648-653 
 
 MESNE PROFITS, 
 
 when and how recovered. . 680, 681, 775, 786, 790, 806, 818, 820, 822, 837-850 
 
 action to recover 837-850 
 
 » in New York 838,' 843, 849 
 
 in whose name the action for, to be brought 839-843 
 
 against whom the action for, to be brought 840-S42 
 
 pleadings in the action for 842-845 
 
 defense in the action for 844 
 
 evidence in the action for 845-848 
 
 damages in the action for 848-850 
 
 MICHIGAN, 
 
 when ejectment will lie in 66 
 
 statute of limitations in 132-134 
 
 leases in, when forfeited 305 
 
 ejectment as between landlord and tenant in 347-349 
 
 law in respect to wills in 520, 521 
 
 action for the recovery of real property in 687-693 
 
 MINNESOTA, 
 
 when ejectment will lie in 68 
 
 statute of limitations in 136, 1 37 
 
 leases in, when forfeited 305 
 
 ejectment as between landlord and tenant in 354, 355 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in 721-726 
 
 MISSISSIPPI, 
 
 statute of limitations in 156, 157 
 
 ejectment as between landlord and tenant in 367 
 
 law in respect to wills in 524, 525 
 
 action for the recovery of real property in 826-830 
 
 MISSOURI, 
 
 statute of limitations in 138, 1 39 
 
 tenants in, may have ejectment, when . . ?. 201 
 
 ejectment as between landlord and tenant in 356-358 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in . ; 733-743 
 
 MORTGAGE, 
 
 in New York, a simple security , . 45 
 
 judgment in, regulated by statute, when .'...., 49, 50 
 
 MORTGAGEE, 
 
 may have ejectment, when 41, 45, 50, 51, 5^0, 83, 67, 109-172, 217 
 
 218, 225 
 
MORTGAGEE — Continued. ~ ^^^^ 
 
 ejectment will not lie against, when 41, 45, 49, 53, 67 
 
 cannot have ejectment in New York 45 45 
 
 may defend ejectment, when .....; 449, 733, 734, 835 
 
 evidence by, in ejectment 543-557 
 
 K 
 
 NEBRASKA, 
 
 statute of limitations in 140 
 
 ejectment as between landlord and tenant in 358 
 
 law in respect to wills in 533 
 
 action for the recovery of real property in 746, 747 
 
 NEVADA, 
 
 statute of limitations in 140-143 
 
 ejectment as between landlord and tenant in 360 
 
 law in respect to wills in 523 
 
 action for the recovery of real property in 747, 748 
 
 NEW HAMPSHIRE, 
 
 when ejectment will lie in 49, 50 
 
 statute of limitations in 113, 114 
 
 leases in, when forfeited 305 
 
 ejectment as between landlord and tenant in 333 
 
 law in respect to wills in 516 
 
 action for the recovery of real property in 61 1-643 
 
 NEW JERSEY, 
 
 when ejectment will lie in 56, 57 
 
 statute of limitations in , 1U8-110 
 
 ejectment as between landlord and tenant in 839-344 
 
 law in respect to wills in 518, 519 
 
 action for the recovery of real property in -. 658-673 
 
 NEW YORK, 
 
 when ejectment will lie in. 44-47 
 
 mortgagee cannot have ejectment in 45 
 
 statute of limitations in 101-103 
 
 tenants in, may have ejectment, when 300-203 
 
 rights of reversioners and assignees of leases in 301, 303 
 
 leasehold estate in, when forfeited • . 305, 306 
 
 leases in, doctrine of 334-331 
 
 ejectment as between landlord and tenant in 331-331 
 
 notice to quit in, doctrine of 331 
 
 law in respect to wills in • 504-514 
 
 action for the recovery of real property in 611-036 
 
 NORTH CAROLINA, 
 
 statute of limitations in ••• 148-151 
 
 ejectment as between landlord and tenant in 365 
 
 law in respect to wills in. 523 
 
 action for the recovery of real property in 797-806 
 
 121 
 
963 ALP-BAMETICAL INDEX. 
 
 NOTICE, 
 
 to appear in ejectment 374, 375, 404-410 
 
 liow served 428 
 
 to landlord in 429, 4S0 
 
 NOTICE TO QUIT, 
 
 unnecessary, when 50, 51, 363, 363, 365, 368, 369 
 
 ■when necessary, and rules in respept to 211-218, 220-253, 324r-373 
 
 by whom to be given ,. 226-233 
 
 to whom to be given 233-236 
 
 service of, when sufficient 235, 236 
 
 to be in writing, when 234, 236 
 
 how to be addressed 236, 237 
 
 when sufficient 240-^246 
 
 waiver of 246-253 
 
 rules in respect to in the several states 324-373 
 
 o. 
 
 OHIO, 
 
 when ejectment will lie in 64 
 
 statute of limitations in 125, 120 
 
 ejectment as between landlord and tenant in 346, 347 
 
 law in respect to wills in 520 
 
 action forthe recovery of real property in , 683-687 
 
 ONTARIO. 
 
 statute of limitations in 97-101 
 
 OREGON, 
 
 statute of limitations in 143 
 
 ejectment as between landlord and tenant in 361, 363 
 
 law in respect to wills in 522 
 
 action for the recovery of real property in 756-761 
 
 OUSTER, 
 
 what constitutes 83, 875, 882, 004 
 
 how charged in declaration in ejectment 398, 3J9 
 
 how and when to be proved 476-482, 801, 803 
 
 P. 
 PARISH tANDS,. 
 
 ejectment for 188-190 
 
 PARTITION, 
 
 cannot be had of land, when 740 
 
 PEDIGREE, 
 
 how proved 485-493 
 
 PENNSYLVANIA, 
 
 when ejectment will lie in 57-61 
 
 statute of limitations in ' 128, 123 
 
 ejectment as between landljrd and tenant in 844, 345 
 
ALPHABETICAL INDEX. 963 
 
 PENNSYLVANIA — CoKTiNCED. ,^ojc. 
 
 law in respect to wills in C19, 520 
 
 action for the recovery of real property in 672-681 
 
 PEOPLE, 
 
 may bring ejectment, when 47 
 
 statute of limitations as against 104-146 
 
 adverse possession as against 784, 944 
 
 PERSONAL REPRESENTATIVES, 
 
 may have ejectment, when > 138 
 
 statute of limitations as against 95, 96, 98 
 
 PLEA, 
 
 in ejectment, when sufficient 377, 662 
 
 form of 463-471, 788, 789 
 
 in abatement not allowed, when 405 
 
 special, when allowed 464 
 
 puis darrien, when allowed 55, 468-470 
 
 POOL OF WATER, 
 
 ejectment for 43 
 
 POSSESSION, 
 
 title by 01, 63, 70-73, 105, 204, 685, 784, 852 
 
 plaintiff must have right to, in ejectment 76-78, 87 
 
 when adverse. ( Vide "Adverse Possession.") 
 
 when mixed, effect of 117 
 
 when must be proved as to defendant in ejectment 472, 473 
 
 constructive, what is 895 
 
 PRACTICAL LOCATION, 
 
 how established'. 100, 138, 571-575, 899 
 
 PRACTICE, 
 
 in ancient ejectment 373-379 
 
 in modern ejectment, at common law 339-371 
 
 on the trial 576-579 
 
 in modern ejectment, subsequent to the trial i 579-592 
 
 in England 599-610 
 
 in the several states 61 1-837 
 
 in the action to recover mesne profits 837-850 
 
 PREMISES, 
 
 how to be described in declaration in ejectment 893-397 
 
 misdescription of, effect of 373. 374 
 
 location of, how determined 474, 475 
 
 PRESUMPTION, 
 
 by reason of possession 71-73, 103, 105, 200, 569 
 
 of title, when 102 
 
 •of grants, etc., when ;...;.. 568, 509, 885 
 
 PUIS DARRIEN CONTINUANCE, 
 
 plea, when allowed in ejectment ;.....".... . .'. T. ...,,. . 55, 46S-470 
 
964 ALPHABETICAL ISDEX. 
 
 E. 
 
 EEAL PROPERTY, ,aoe. 
 
 title to, how njudicated .••••r 33 
 
 possession of, how recovered '...". 34 
 
 claimants title to, in ejectment 165-205 
 
 title to, in the people originally 187 
 
 conveyances of, how construed 569, 570 
 
 action for the recovery of. ( Vidb " Ejectment.") 
 
 RECITALS, 
 
 in deeds, etc., when evidence 566-569 
 
 RELEASE, 
 
 may be pleaded in ejectment, when 377, 378, 468, 469 
 
 REVERSIONER, 
 
 barred by statute of limitations, when 73, 74, 98, 101, 117, 118 
 
 may take advantage of forfeiture, when 296-301 
 
 EIGHT, WRIT OF, 
 
 when it will lie 45 
 
 generally disused 46 
 
 RHODE ISLAND, 
 
 when ejectment will lie in 54, 55 
 
 statute of limitations in 119, 130 
 
 ejectment as between landlord and tenant in !337 
 
 law in respect to wills in 517 
 
 action for the recovery of real property in 653, 654 
 
 s. ^ 
 
 SEISIN, 
 
 is the highest estate in property TO 
 
 how proved . . . , 483 
 
 SHERIFF'S SALE, 
 
 purchaser at, may have ejectment when 177, 178 
 
 ( Vide " Execution.") 
 
 SOUTH CAROLINA, 
 
 statute of limitations in 151-153 
 
 ejectment as between landlord and tenant in 865, 386 
 
 law in respect to wills in 534 
 
 action for the recovery of real property in 806-813 
 
 STATUTE MERCHANT, 
 
 what is , 175 
 
 STATUTE STAPLE, 
 
 what is 175 
 
 STATING PROCEEDINGS, 
 
 in ejectment 593-599 
 
 SURRENDER, 
 
 when presumed 193, 197 
 
 doctrine of, in. general 818-823 
 
 New York 324, 825 
 
ALPHABETICAL INDEX. 965 
 
 T. 
 
 TAXES. 
 
 sale for, title under 535-538, 685 
 
 TENANCY, 
 
 how determined 306, 21 1 c«. seq., 364 
 
 for years, how created 207 et. aeg. 
 
 at will, doctrine of 309, 313 et. seq., 369 
 
 from year to year, doctrine of 211 ct. seq. 
 
 termination of, by non-payment of rent 353 et. seq. 
 
 surrender of, by tenant 318-323 
 
 doctrine of, in the several states 324-373 
 
 TENANTS, 
 
 in common, may not have ejectment, when. 41, 199 
 
 have ejectment, when 46, 47, 306 et. seq., 748, 801, 803 
 
 or joint, may have ejectment, when 58, 54, 56, 60, 69 
 
 199-202, 389, 476-482, 739 
 
 at will, may have ejectment, when 65 
 
 statute of limitations as against 93, 94, 98, 99, 113, 133, 137, 153 
 
 for years, may have ejectment, when Ip8 et. seq. 
 
 by eligit, may have ejectment, when 176, 177, 318 
 
 in common, how property held by 202, 935 
 
 notice to quit by 227 et. seq. 
 
 in common and joint, difference between 231, 232, 387 
 
 may forfeit their estate, when 168, 255 et. seq., 277 et. seq., 396-318 
 
 surrender of estate by 318-333 
 
 in New York 334, 335 
 
 estopped from disputing landlord's title, when 549-557, 737, 876-878 
 
 in common, may enforce j udgment, when 740 
 
 possession of, adverse, when 876-878, 926, 937 
 
 TENNESSEE, 
 
 statute of limitations in 157-150 
 
 ejectment as between landlord and tenant in 367, 368 
 
 law in respect to wills in 535 
 
 action for the recovery of real property in 791-(C97 
 
 TEltM, 
 
 presumed to be surrendered, when 77 
 
 ceases, when 196 et. seq. 
 
 definition of '. 208 
 
 TEXAS, 
 
 statute of limitations in 164, 165 
 
 ejectment as between landlord and tenant in 371, 373 
 
 law in respect to wills in 537 
 
 action for the recovery of real property in 834-837 
 
 ;riTHBS, 
 
 doctrine of .. .4 190 etseq. 
 
966 * ALPEABETICAL INDEX. 
 
 TITLE, , .,„^. 
 
 what sufficient to support ejectment . . 43, 44, 51, 58, TO-78, 165-2C5, 378 
 
 773, 774, 820 
 
 not sufficient if acquired after suit commenced 76 
 
 color of, not necessary for adverse possession, when, 126, 127, 864, 869, 870 
 
 necessary for adverse possession, when 130-132, 859, 874, 913 
 
 what required in ejectment '. 165 et aeq., 192 et seq. 
 
 cannot be denied, when 204, 205, 543-559 
 
 proved in ejectment must be consistent with the demise 475 
 
 proof of, by claimant, wlien no privity exists 482-542 
 
 when a privity exists 543-559 
 
 wliat passes by transfer of 711 
 
 must be somewhere 783, 937 
 
 TITLE, EQUITABLE, 
 
 insufficient to support ejectment, when 43, 44 
 
 sufficient to support ejectment, when 43, 44, 739 
 
 defense in ejectment, when 565, 566 
 
 TRIAL, 
 
 in ejectment, practice on 576-579 
 
 TRUST, 
 
 when barred by statute of limitations 118, 119 
 
 TRUSTEES, 
 
 may maintain ejectment, when 40, 53, 54, 59, 64, 75, 192 et aeg. 
 
 cannot plead statute of limitations, when. . . . 146, 150, 151, 153, 155, 161 
 
 declaration in ejectment by 388, 389 
 
 possession of, may be adverse, when 876-878 
 
 V. 
 
 VACANT POSSESSION, 
 
 ejectment in case of 378, 379, 413, 424, 428, 433 
 
 VARIANCE, 
 
 between declaration and issue 467, 468, 578, 579 
 
 — and proof 474 
 
 VENDEE, 
 
 of land may be ejected, when .40, 57, 316, 565, 566 
 
 when barred by statute of limitations ._ 123 
 
 cannot dispute title of vendor, when 106, 558, 559, 826 
 
 may dispute vendor's title, when 876-878 
 
 possession of, adverse, when 876-878 
 
 VENDOR AND VENDEE, 
 
 ejectment as between 40, 57, 216, 565, 560 
 
 evidence in ejectment between 558, 559, 826 
 
 doctrine of adverse possession between 876-878 
 
 VENUE, 
 
 in ejectment, where to be laid, 883 
 
 VERDICT, 
 
 in ejectment, form of 579-583 
 
 sufficiency of 785, 703, 831 
 
ALPHABETICAL IXDSX. 967 
 
 ^RMONT, 
 
 when ejectment will lie in 50-53 
 
 statute of limitations in 114r-116 
 
 tenants may have ejectment in, when 201 
 
 ejectment as between landlord and tenant in 834 
 
 law in respect to wills in 516 
 
 action for the recovery of real property in G43-648 
 
 VIRGINIA, 
 
 when ejectment will lie in 63, 64 
 
 statute of limitations in 145-148 
 
 ejectment as between landlord and tenant in 363-363 
 
 law in respect to wills in 583 
 
 action for the recovery of real property in 776-786 
 
 TV. 
 
 WAIVER, 
 
 of notice to quit 246-253 
 
 of forfeiture of lease 273-277 
 
 WASTE, 
 
 will forfeit lease, when 284, 290-293 
 
 what is 290-293 
 
 WATER COURSE, 
 
 ejectment will not lie for 43 
 
 WEST VIRGINIA, 
 
 policy in respect to real actions in, not given 64, 786, 787 
 
 law in respect to wills in 523 
 
 WIDOW, 
 
 may be ejected from late husband's land, when 40, 41 
 
 is tenant in common with the heirs, when 40 
 
 may maintain ejectment, when 172 
 
 WIFE, 
 
 when barred by statute of limitations 151, 156 
 
 WILL, 
 
 how to be construed 193 
 
 general rule in respect to 496-499 
 
 law of England in respect to 500-504 
 
 laws of the American states in respect to 504-537 
 
 WISCONSIN, 
 
 when ejectment will lie in 06-68 
 
 statute of limitations in 134-136 
 
 when lease forfeited in 305 
 
 ejectment as between landlord and tenant in. 353, 354 
 
 law in respect to wills in 521 
 
 action for the recovery of real property in 713-721 
 
 WITNESSES, 
 
 competency of B75, 576 
 
KF 652 T9l c.l 
 
 Authoj 
 
 '^ler, Ransom HeTsTDard 
 
 Vol. 
 
 Title ^ Treatise on the remedy by copy 
 ejectment andthe law of adverse 
 
 Date 
 
 Borrower's Name 
 
-iU^ 
 
 % ii