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EJECTMENT-WHEN PROPER REMEDY.

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§ 37. By a Tenant Against His Landlord.

38. For What the Action will not Lie.

39.

A General Rule.

40. Share of a Partner in Lands Owned by the Partnership.

41.

By the Devisee of a Partner, etc.

42. Against a Remainder Man.

43. By the Owner of Lands Sold by a Trustee.

44. By a Sole Heir Whose Name Has Been Omitted From the Will by Mistake.

45. In Favor of the Mortgagor's Vendee Against a Purchaser at Fore

closure Sale.

46. For Lands Previously Dedicated.

47. Lands Swallowed up by the Sea.

48. The Rule Stated by Sir Matthew Hale.

49. Projecting Cornices, etc.

50. Easements and Incorporeal Hereditaments, etc.

51. What are Easements, etc.

52. Grant of Privileges When Determined by Location. 53. Against a Beneficiary Under a Will.

54. Water Courses, etc.

55. When the Action Will Lie-Statutory Provisions.

§ 1. Where Ejectment is the Proper Remedy.—The property which may be recovered by the action of ejectment is now generally regulated by statute. By the common law rule, the action of ejectment will not lie for anything upon which an entry can not be made, or of which the sheriff can not deliver possession. By this rule, 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, (1) the thing claimed must be a corporeal hereditament, (2) a right of entry must exist at the time of the commencement of the action, and (3) the interests must be visible and tangible; so that the sheriff may deliver the possession to the plaintiff under the writ of possession issuing out of the court.'

An ejectment would not lie for lands belonging to the Crown of which the Crown is in possession by its officer; the proper remedy is by petition of right. Nor would it lie for a rent, an advowson, a common in gross, or pur cause de vicinage, or any other thing which passes only by grant. But Tithes, though an incorporeal inheritance, could be recovered by this action, but the right of maintaining an ejectment for them did not arise from the common law, it was given by the provisions of the statute, 32 Hen. VIII, c. 7. Doe v. Roe, 8 M. & W. 579; Adams on Ejectment, 20.

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1 Black v. Hepburne, 2 Yeates, 331; Rowan v. Kelsey, 18 Barb. (N. Y.) Farley v. Craig, 3 Green (N. J.), 192; 484; Adams on Ejectment, 20. White v. White, 1 Han. (Del.) 202;

Where one is in possession of land claimed by another, the proper form of remedy is ejectment. Corporation of the Catholic Bishop of Nesqually v. Gibbon (Wash. T.), 44 Fed. Rep. 321; 21 Pac. Rep. 315 (1891).

The general rule is, that an action of ejectment will lie for anything attached to the soil, of which the sheriff can deliver possession. Jackson v. May, 16 Johns. (N. Y.) 184.

Wherever a right of entry exists, and the interest is tangible, so that possession of it can be delivered, an ejectment will lie for it. Jackson v. Buel, 9 Johns. (N. Y.) 298.

The action of ejectment has been held to be the proper remedy in the following cases:

Ejectment lies against persons who have entered on land, and claim possession adverse to the true owner, though they are not personally in possession at the commencement of the action. Bell v. Foxen, 42 Fed. Rep. 755; 14 Sawy. (U. S.) 499 (1891).

It is an appropriate remedy by a vendor against a vendee or his assignee to enforce payment of the purchase money on an executory agreement for the sale of land, and will lie on the first default of principal or interest· Brown v. Divitt, 131 Pa. St. 455; 26 W. N. C. 55; 19 Atl. Rep. 80 (1890).

It is the proper remedy in behalf of the heirs against the administrator to recover possession of a homestead, where the land occupied by intestate as such homestead at the time of his death consisted of 160 acres or less, or where prior to his death he has, when actually occupying more than 160 acres, filed a written declaration of his homestead in the probate office of the county judge, under act Fla. 1869 (McClel. Dig. p. 531, § 11). Barco v. Fennell, 24 Fla. 378; 5 So. Rep. 9 (1883).

But where one or more of the heirs of an estate is a minor, and the an cestor dies actually occupying as his homestead a tract of rural land exceeding 160 acres, and not having filed a written designation of a part thereof as his homestead, ejectment will not lie in behalf of such heirs. The proper remedy for setting aside the homestead is a bill in equity. Acts Fla. 1881, c. 3246, § 2; McClel. Dig. p. 166, § 54; Id.

Ejectment does not lie in behalf of an heir as against an administrator, to recover possession of land to which the latter is entitled as an asset of the estate. Id.

As against a railroad company which entered upon land, and laid its tracks under a deed of purchase purporting to convey the fee, but passing only the curtesy of the husband of the owner, the wife or her heirs are not estopped from bringing ejectment to recover the land after the death of the husband. Bradley v. Missouri Pac. Ry. Co., 91 Mo. 493; 4 S. W. Rep. 427 (1887).

Nor are they estopped from maintaining the action by the fact that the land sued for has been foreclosed under a mortgage given by the original road, and has passed into the hands of a corporation formed by the consolidation of several companies, and has been mortgaged for large sums of money to its entire value; it appearing that while those proceedings were going on, the plaintiffs in ejectment were living in a distant State, and it not being shown that they encouraged or knew of what was being done Id.

In an action to recover possession of real property, brought by a devisee

EJECTMENT-WHEN PROPER KEMEDY.

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thereof, it was admitted that plaintiff's devisor appeared by the record title to have received a deed of the property, and that the record would show title in his grantor at the time of such conveyance, and production of the record was waived by defendant. Held, that plaintiff could recover without additional evidence; that actual possession had been taken of the land under the title shown by the record, as such title, appearing to have been derived from the original owner, was accompanied by constructive possession. Clason v. Baldwin, 59 Hun, 622; 13 N. Y. Sup. 681 (1891).

Proof by an heir or devisee, suing in ejectment, that his ancestor died in possession of the land under a bona fide claim of right thereto, establishes a prima facie case in favor of plaintiff, and he is entitled to recover unless defendant shows a better adverse title. Wolf v. Baxter, 86 Ga. 705; 13 S. E. Rep. 18 (1891).

Where a widow in possession asserts title in herself as donee of her deceased husband, and denies that he died seized of the premises, the grantee of the heirs at law of the husband may maintain ejectment against her. Kellogg v. Gilfillan (Pa.), 10 Atl. Rep. 888 (1887.)

Where, when plaintiff is in possession of land, defendant erects a house on the land, and incloses it all but a few acres, on which plaintiff's house stands, and assumes and exercises control over it, there is a sufficient ouster to enable plaintiff to bring an action of ejectment on the ground of prior possession. Gruell v. Spooner, 71 Cal. 493; 12 Pac. Rep. 511 (1887).

Ejectment is the only adequate and proper remedy against one in possession of certain lots as a landing for a swinging bridge, and claiming the permanent right of possession in hostility to the owner's title. Lawe v. City of Kaukauna, 70 Wis. 306; 35 N. W. Rep. 561 (1888).

The owner of the fee of land subject to an easement for a public highway may maintain ejectment for it against an intruder. Following Weyl v. Railroad Co., 10 Pac. Rep. 510; Porter v. Pacific Coast Ry. Co. (Cal.), 18 Pac. Rep. 428 (1888).

One is liable in ejectment for a projection of his roof over another's land. Murphy v. Bolger, 60 Vt. 723; 15 Atl. Rep. 365 (1888).

Where a person in possession of land conveys his interest to another, he becomes tenant to that other so long as he retains possession; and the grantee, as landlord, under the Vermont statute, is liable to ejectment by a third person. Hodges v. Gates, 9 Vt. 178; 5 U. S. Dig. 134.

The heirs of a patentee of land may recover in ejectment, against a person who had the use and occupation of the land as his own, in the lifetime of the patentee, and so continued until after his death, and claimed to hold the same by adverse title; the duration of such possession being less than twenty years. Lee v. Grunlee, 6 Munf. (Va.) 303; 5 U. S. Dig. 134.

Under Va. code, ch. 135, § 2, it lies against persons who have made entries and surveys to any part of the land in controversy, and are settling up claims to it; though not in occupation of it, at the time suit is brought. Harvey v. Taylor, 2 Wall. (U. S.) 328; 5 U. S. Dig. 134.

To authorize an action of ejectment against an individual, he must be in possession, exercising ownership and claiming title, and his possession must be exclusive of the public. Redfield v. Utica, etc., R. R. Co., 25 Barb. (N. Y.) 54; 5 U. S. Dig. 134.

In Pennsylvania, ejectment is an equitable action; and wherever chancery would decree a conveyance or execute a trust, the courts, through a

jury, will direct a recovery in ejectment. In such case the jury merely ascertains the facts, and the court judges whether the plaintiff is entitled to relief, and determines the extent and mode of relief. Peetles v. Reading, 8 Serg. & R. (Pa.) 484; 5 U. S. Dig. 134.

The common law remedy by ejectment, as a means of compelling specific performance, is not taken away in Pennsylvania by the grant of equity powers to the Courts of Common Pleas. Carson v. Mulvany, 49 Pa. St. 88; 5 U. S. Dig. 134.

It lies to recover the possession of land sold on execution, the defendant being in actual possession thereof. Doe v. Mitchell, 6 Ala. 70; 5 U. S. Dig. 134.

Against the grantor with covenants of warranty by the grantee, without any demand of possession or notice to quit. Dodge v. Walley, 22 Cal. 224; 5 U. S. Dig. 134.

And where there is an agreement that the mortgagee may dispose of the premises, in case the interest is not paid annually. Alsop v. Peck, 2 Root, (Conn.) 224; 5 U. S. Dig. 134.

The action lies by B for lands mortgaged to him by A, who afterwards leased the same lands to C, who entered under A, paying rent. Bank v. Bates, 11 Conn. 519; 5 U. S. Dig. 134.

It lies where the property sought to be recovered is tangible, and an entry can be made, and possession can be delivered by the sheriff. Nichols v. Lewis, 15 Conn. 137; 5 U. S. Dig. 134.

And also where land is sold under the authority of a Circuit Court, in Kentucky, upon the petition of adult heirs and infants by their guardian ad litem; it not appearing that any statutory guardian of any of the infants had petitioned or had sanctioned the petition, and the proceedings were, in other respects, not in conformity to the statute. Vowles v. Buckman, 6 Dana (Ky.), 466; 5 U. S. Dig. 134.

It lies after a breach of a condition for payment of rent upon an actual demand of the rent in arrears. Morse v. Clayton, 21 Miss. (13 Smed. & M.)

373; 5 U. S. Dig. 134.

And to regain possession where a widow has been evicted of the mansion house of her husband, and the plantation thereto belonging, before an assignment of dower. Stoakes v. M'Allister, 2 Mo. 163; 5 U. S. Dig. 134.

It lies to recover possession of a room in the house. White v. White, 16 N. J. L. (1 Harr.) 202; 5 U. S. Dig. 134.

Also by the owner of the soil, where a private individual appropriated to his own use a portion of the public highway. Wright v. Carter, 3 Dutch. (N. J.) 77; Brown v. Galley, Hill & D. (N. Y.) Supp. 803; 5 U. S. Dig. 134.

It lies generally whenever a right of entry exists, and the interest is tangible, so that possession can be delivered; reservation of "the right and privilege of erecting a mill dam at a certain place described, and to occupy and possess the premises without any hindrance or molestation from the grantee, or his heirs," being such an interest. Jackson v. Buel, 9 Johns. (N. Y.) 298; 5 U. S. Dig. 134.

When the land has been held adversely for twenty years, and an entry made by a party who has the true title. Jackson v. Oltz, 8 Wend. (N. Y.) 440; 5 U. S. Dig. 135.

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It lies against one claiming verbally a tract of land, though he does not occupy the same. Banyer v. Empie, 5 Hill (N. Y.), 48; 5 U. S. Dig. 135.

By the owner in fee, against a railroad company who, under a license conferred no legal right, entered upon a street and laid their tracks therein, but had not actually begun to use the same. Carpenter v. Oswego, etc., R. R. Co., 24 N. Y. 55; 5 U. S. Dig. 135.

Although the lessor of the plaintiff and the defendant are living on different parts of the tract, and claiming adversely. Dobbins v. Stephens, 1 Dev. & B. (N. C.) L. 5; 5 U. S. Dig. 155.

To recover a life interest in land derived from an agreement by the owner of the land, to allow the plaintiff in ejectment to put a saw-mill on the premises, for the purpose of carrying on business of sawing lumber "so long as he (the plaintiff) wished." Stancel v. Calvert, 1 Wins. (N. C.) L. No. 1, 104; 5 U. S. Dig. 135.

It lies in Pennsylvania on a mortgage payable by installments, before all the installments became due. Smith v. Shuler, 12 Serg. & R. (Pa.) 240; 5 U. S. Dig. 135.

And to enforce the performance of an agreement to convey land, and to settle the account between the parties arising out of the agreement. Dickey v. M'Cullough, 2 Watts & S. (Pa.) 88; 5 U. S. Dig. 135.

On the contract for the sale of a mill, though the contract embraced other matters connected therewith. Carmalt v. Platt, 7 Watts (Pa.), 318; Irvine v. Bull, 7 Watts (Pa.), 323; 5 U. S. Dig. 135.

To enforce a condition contained in a deed; otherwise of a consideration, though it amount to a covenant. Cook v. Trimble, 9 Watts (Pa.), 15; 5 U.S. Dig. 135.

Although an action of ejectment is founded in fictions, yet, for all the purposes of the suit the lease is to be deemed a real possessory title. Robinson v. Campbell, 3 Wheat. (U. S.) 212; 5 U. S. Dig. 133.

The possession of the vendee under an executory contract for a sale of land, becomes tortious immediately upon his failure to comply with the stipulations of the contract, and the vendor has thereupon an immediate right of action. Cregg v. Von Pheel, 1 Wall. (U. S.) 274; 5 (U. S.) Dig. 133. A non-compliance by one who has purchased real estate and gone into possession, with a request to pay the purchase money, on the ground that he is not prepared to do so, and a return to the vendor, without promise to pay at a future time, and without further remark of any sort, of a deed offered, is a failure to comply with the terms of purchase. And ejectment lies at once, without demand or notice, even though the vendor may not himself have been perfectly exact in the discharge of parts, merely formal, of his duty, such want of formality on his part having been waived by the vendee, and though the vendee may have made valuable improvements on the land. Cregg v. Von Pheel, 1 Wall. (U. S.) 274; 5 U. S. Dig. 133.

By a purchaser at a sheriff's sale to acquire the defendant's possession; this principle, however, does not apply to a sale where the process is void; as when the sheriff undertakes to sell a life estate, which he can not do. Snavely v. Wagner, 3 Pa. St. 275; 5 U. S. Dig. 135.

In Vermont it lies against the husband where his interest in the freehold estate of his wife, after issue born alive, is levied upon and he remains in

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