Obrázky stránek

from the time his right to the possession accrued must be considered in connection with the statute of limitation. All rents and profits which have accrued prior to the time fixed by the statute are barred, and can not be recovered if the statute is pleaded.'

$127. The Doctrine of Mesne Profits Discussed.-The law applicable to mesne profits in actions of ejectment is discussed in the chapter of this work devoted to the subject and where it is believed the general rules of law and probably some questions of the evidence in actions for their recovery as they present themselves incidentally, are fully discussed."

1 Ringhouse v. Krener, 63 Ill. 230 2 Chapter XIX, Mesne Profits and (1872); Ainslie v. Mayor, etc., 1 Damages.

Barb. (N. Y.), 168; Hill v. Meyers,

46 Pa. 15.




§ 1. A Maxim of Our Law.


The Plaintiff's Case.


Plaintiff Must Recover on the Strength of His Own Title-Exceptions to the Rule.

[blocks in formation]

10. Titles, Legal and Equitable.

11. Questions of Local Law.

12. Distinctions Between Law and Equity Abolished.

13. Equitable Defenses in Some States.



The Rule in the Federal Courts.

U. S. Register's Certificates Evidence of Equitable Titles.

16. The Rule in the Federal Courts.

17. Suits for Possession-The Remedy at Law.

18. Adjustment of Titles in Actions of Ejectment. 19. Notice to Quit-Demand for Possession.

20. Synonymous Terms-Not Required When, etc. General Rules.



A Matter of Statutory Regulation.

23. Under the English Law.

[blocks in formation]


Tenants at Sufferance.

31. Tenants at Will.

32. Tenancy at Will-When it Arises.

33. Necessity of Notice-The Law Stated by Washburn,

34. Tenants from Year to Year.

35. Tenants in Common and Joint Tenants.

[blocks in formation]


Possession Under Void Leases.

39. Persons Holding Under Defaulting Tenants, etc.

§ 40. Tenants Holding Over.

41. Necessity for Notice, When Dispensed With.

42. What Amounts to a Denial of a Tenancy.

43. What Does Not Amount to a Denial..

44. Waiver of Notice.

45. Requisites of the Demand for Possession or Notice to Quit. 46. Computation of Time.

47. Who is Authorized to Give the Notice, etc.

[blocks in formation]

53. Defendant Must Be in Possession-Exceptions to the Rule.

[blocks in formation]








Essentials of a Disseizin.

Disseizin May Be Inferred from Circumstances.
Constructive Disseizin-Election.

Disseizin of Uncultivated Lands.

A Disseizor Can Not Qualify his Acts.

Seizin Once Shown Presumed to Continue.
Incidental Matters.

69. Conveyance by Plaintiff Pending Suit.

70. Statutory Provisions.

71. Conveyance after Suit to Correct Mistake in a Former Conveyance. 72. Title Acquired after Suit Brought.

§ 1. A Maxim of Our Law. It is a maxim of the law that the party in possession of property is considered the owner until the contrary is proved.' It is necessary, therefore, for a plaintiff in ejectment to show in himself a good and sufficient title to the disputed lands. He will not be assisted by the weakness of the defendant's claim, for the possession of the latter gives him a right against every man who can not establish a title; and if he can answer the case on the part of the plaintiff by showing the real title to be in another, it will be sufficient for his defense, excepting of course those cases in

Adams on Ejectment, 33; Run- v. Dyball, 1 M. & M. 346; Ricard v. nington on Ejectment, 15; Franklin Williams, 7 Wheat. (U. S.) 59. v. Palmer, 50 Ill. 202 (1869); Hughes

[blocks in formation]

which the defendant is estopped from disputing the claimant's title, although he does not pretend that he holds the land with the consent, or under the authority of the real owner.'

The plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's. Eldon v. Doe, 6 Blackf. (Ind.) 341; Huddleston v. Garrett, 3 Hump. (Tenn.) 629; Winn v. Cole, Walker (Miss.) 119. He must show a complete title, and identify the land in accordance therewith. McRaven v. McGuire, 9 S. & M. (Tenn.) 34.

Plaintiff must recover on the strength of his own title, and not on the weakness of defendant's; yet long possession and actual and continued occupancy under claim of title, based on deeds, are prima facie evidence of title, and the mere fact that plaintiff fails to show a patent from the United States is not sufficient to defeat his action. Hacker v. Horlemus, 74 Wis. 21; 41 N. W. Rep. 965 (1889),

Evidence that one was in possession of the premises in dispute in ejectment, claiming title, over twenty years before suit brought, and that his title was transferred to plaintiff's devisor, who took possession, is sufficient as against a defendant who makes no claim of title, but relies solely on the failure of plaintiff to make out a case. Johnson v. Johnson, 70 Mich. 65; 37 N. W. Rep. 712 (1888).

Plaintiff in an action of ejectment can recover solely upon the strength of his own title, and not through the weakness of defendant's. If he have none himself, he can not maintain the action, even though defendant's paper title be fatally defective. Chivington v. Colorado Springs Co., 9 Colo. 597; 14 Pac. Rep. 212 (1887).

2. The Plaintiff's Case.--A plaintiff in ejectment may rest when he has shown a prima facie right to recover. He is not required to anticipate the defense that will be interposed. The plaintiff is not bound to know whether the defendant will rely upon the statute of limitations, upon a paramount out. standing title; that the persons claiming to be heirs were in fact not heirs; that they had previously conveyed to other par. ties; that their deeds were forgeries, or any other of the defenses that may exist to a recovery in ejectment. To require a plaintiff in ejectment to anticipate every defense that might be interposed would be unseasonable-would create delay in the dispatch of business, and work great hardships. He is only required by the rules of evidence, to show a right unopposed, to recover, and then permit the defendant to disclose

1 Adams on Ejectment, 33; Run- Preston's Heirs v. Bowman, 6 Wheat. ington on Ejectment, 15; Eldon v. (U. S.) 580; Stewart v. Town, 4 Cow. Doe, 6 Blackf. (Ind.) 341; Huddleston (N. Y.) 602; Sparkman v. Porter, 1 v. Gar ett, 3 Humph. (Tenn.) 629; Paine (U. S. C. C.) 457.

his defense; after which he is entitled to rebut any defense that may have been interposed.'

[ocr errors]

§3. Plaintiff Must Recover on the Strength of His Own Title, etc.-Exceptions to the Rule The Law Stated by Treat, C. J.-As a general principle, a plaintiff in ejectment must establish a legal title to the premises in controversy. He must recover on the strength of his own title and not on the weakness of that of his adversary. But there are two exceptions to this rule. Such a relation may exist between the parties as will dispense with the production of title on the part of the plaintiff. A party in possession under the plaintiff can not controvert the title under which he entered. If he was admitted into possession under a contract of purchase with the plaintiff, the latter, in an action to regain the possession, is not required to make proof of his title. And in an action against a tenant the landlord need not show title. The tenant is estopped from denying the title of his landlord. His possession is subservient to the title of the party under whom he entered.

He is not permitted to betray the possession with which he was intrusted. He can not set up a better title in himself or a third person. Public policy and common honesty alike forbid that he should do any act which may defeat or endanger the title of his landlord. He must surrender up the possession before he can assail or question the title. He must put the landlord in the position he occupied when he parted with the possession. The same principle applies to those acquiring the possession from the tenant. The relation of landlord and tenant attaches to all who succeed to the possession through or from the tenant. They acquire no greater right than the party from whom they received the possession.'

The rule of law, that a person coming into possession of lands under another can not be permitted to deny the title of the latter, when called upon to surrender, is of almost universal application. Even if the person

1 Walker, J., in Huls v. Buntin. 47 son v. Spear, 7 Wend. (N. Y.) 401); III. 393 (1868).

2 Treat. C. J., in Tilghman v. Little, 13 Ill. 239 (1851); Jackson v. Davis, 5 Cow. (N. Y.) 123: Cooper v. Smith, 8 Watts (Penn.), 536; Riley v. Million, 4 J. J. Marsh. (Ky.) 395; Binney v. Chapman, 5 Pick. (Mass.) 124; Jack

Camp v. Camp, 5 Conn. (N. Y.) 291; Anderson v. Darby, 1 Nott & McCord, (S. C.) 369; Henly v. Bank, 16 Ala. 552; Wood v. Turner, 7 Humph. (Tenn.) 517; see also Wells v. Mason, 4 Scam. (Ill.) 90; Blight's Lecsee v. Rochester, 7 Wheat. (U. S.) 735 (1822).

« PředchozíPokračovat »