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TITLE NECESSARY TO SUPPORT ACTION.

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trustees of his property. Held that, if said executors were in fact trustees of said property, they were so in their representative capacity, and, being invested with the legal title to said property, were competent to maintain ejectment therefor in their capacity as executors. Landon v. Townshend, 14 N. Y. Sup. 522; Am. Dig. 1891, 1382.

Plaintiffs in ejectment claimed as executors of a will which devised all testator's property to his wife during her life, with remainder over to his children; and which authorized them "to sell such portions of the real estate as they may think advantageous to dispose of, and to execute all such legal papers as may be necessary to give perfect title to the purchaser.” Held, that the legal estate vested in the widow and remainder-men, and not in the executors, and they could not maintain the action. Fredericks v. Cisco, 72 Md. 393; 20 Atl. Rep. 190; Same v. Offley, Id. 191; Am. Dig. 1890, 1178-1179.

In ejectment it appeared that one J. had entered the lands in suit at the State land office on time; that after his death his son W. was appointed administrator de bonis non, and as such, in order to avoid the payment of back interest on the purchase price, surrendered the certificates of entry: that by preconcerted arrangement the lands were immediately entered by a friend of W.'s. A short time afterward this friend assigned the certificate of entry to W. individually, and not as administrator. W. and the rest of the family of J., lived on the land for some years. It appeared that W. had no means with which to purchase the land individually, his only income being from the estate of which he was administrator, and that he paid the taxes out of the proceeds of the estate; that he had claimed that the land belonged to the estate, though plaintiff testified that he had represented to him, for the purpose of obtaining credit, that he owned the land. Held, that W. did not acquire any interest in the land individually, but his title was that of administrator only. Reeves v. Barrett (Ark.), 13 S. W. Rep. 77; Am. Dig. 1890, 1176.

An executor can not maintain ejectment to recover his testator's realty. the will not appearing in the record, and there being no averment that it vested him with title to the realty. Sturgeon v. Underwood's Ex'r (Ky.), 2 S. W. Rep. 655 (1887).

Where a will describes property as fronting on C. street, "adjoining O. street, the same being about 30 feet wide in front," and it is not shown exactly what the dimensions of the property are, a person claiming a strip of land as part of the land devised does not show such title as will support ejectment. Finelite v. Sinnott, 5 N. Y. Sup. 439.

Where several persons are devisees and tenants in common of land which is sold by two of the executors and devisees, under a power in the will of the devisor, and afterward one of the executors and devisees, who made the sale, purchases from the grantee, and takes a conveyance of the lands to himself, absolutely, the title becomes vested in him solely; and his declarations that he held in common with his co-devisees are sufficient to entitle them to recover a portion of the land as tenants in common with him. Jackson v. Burtiss, 14 Johns. (N. Y.) 391.

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 his right to maintain such an action. Hopkins, etc., v. Stephens, 2 Rand. (Va.) 422.

Upon the death of the trustee pending the ejectment, his devisees are the proper persons to be substituted as plaintiffs. Hunt v. Crawford, 3 Penn.

426.

A trustee may recover in ejectment against his cestui que trust. Beach v. Beach, 14 Vt. 28. A jury will not be directed to presume a conveyance where the trustee could not be authorized to convey, or where it was evidently intended that the legal estate should remain in the trustee. Ib.; and see Mathews v. Ward, 10 Gill & J. (Md.) 443.

In the case of The Town of North Hempstead, etc., v. The Town of Hempstead, etc., 2 Wend. (N. Y.) 109, 134, it was adjudged, by the unanimous decision of the court for correction of errors, that cestui que trust, in the case of a resulting trust, may maintain or defend ejectment for the lands which constitute the trust property. In that case, Savage, Ch. J., delivering the opinion of the court said: "There is still another ground on which the title in the town may be sustained. It is fairly inferable, that if any consideration was paid in the first instance, all the inhabitants contributed to it. The grant is to the patentees and their associates. heirs, successors and assigns. If the patentees were trustees, and the cestui que trust paid the consideration, there was then a resulting trust in their favor; and such cestui que trust have been considered as possessing the equitable estate and the legal also, so far as to enable them to defend or maintain an action of ejectment for lands thus held by them.

A cestui que trust, after the purposes of the deed had been satisfied, may maintain ejectment, upon a demise in his own name, although the legal estate is still in the trustee. Hopkins v. Ward, 6 Mun. (Va.) 38.

A cestui que trust entitled to the enjoyment of the possession of land. may maintain ejectment to recover it in his own name either against a trustee or a stranger. 1 Watts & S. (Penn.) 9.

Where land is conveyed in trust, with power to sell and apply the proceeds to the payment of a debt, the payment of the debt does not divest the trustee of the legal estate, so that the cestui que trust may maintain ejectment. Moore v. Burnet, 11 Ohio, 334.

The legal title of a trustee, under a deed of trust, with a power to sell for the payment of the debts of the cestui que trust, is not divested by the discharge of the debts, but the trustee my maintain ejectment. Adam Moore v. The Lessee of Burnet, 11 Ohio, ¿34.

A trustee may bring ejectment for lands, and a wrongdoer can not set up the title of the cestui que trust. Hunt v. Crawford, 38 Penn. 426.

Ejectment may be maintained by the heis at law of the surviving trustee, the suit not being adverse to the cestui que trust. Crunkleton v. Evert, 3 Yeates (Penn.), 570.

Where a power is granted to surviving trustees, under a will, to appoint substitutes, they may convey the legal estate to a third person, with the assent of the cestui que trust; and such conveyance will authorize the third person to bring ejectment in his own name. Mitchell v. Stevens, 1 Aiken, (Vt.) 16.

In North Carolina, it has been held that the grantee of a trustee may maintain ejectment, although the conveyance is not authorized by the trust. Canoy v. Troutman, 7 Ired. (N. C.) 155.

PLAINTIFF'S TITLE, HOW ESTABLISHED.

379

An action of ejectment may be maintained by a trustee against his cestui que trust, unless, as under certain circumstances may be done, a conveyance of the legal title is presumed. Mathews v. Ward's Lessee, 10 Gill & J. (Md.) 443.

An administrator in possession of lands, of which his intestate died seized and possessed, does not hold adversely to the right of his intestate, and can not acquire a title in his own right, by the statute of limitations. North v. Barnum, 12 Vt. 205.

An executor entering on lands of the estate of his testator and occupying them, is to be considered as holding them in trust for the heirs or devisees, unless he proves that he held adversely with notice to the heirs or devisecs, in which case the proof lies on him to establish the claim at law, on an issue directed. Ramsay v. Deas' Exr., etc., 2 Eq. Rep. (Dees.) 233.

8. Now Generally a Matter of Statutory Regulation.-The interest or title necessary to support the action has now generally become a matter of statutory regulation. As a fair example of these enactments, we quote the statute of Illinois.

Plaintiff's right to possession: 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 proved and established at the trial.'

How. St. Mich. § 7790, providing 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 possession thereof, or of come share, interest or portion thereof, to be proved and established at the trial," does not deprive one who has had actual possession, under a claim of ownership, of the right to maintain ejectment against a mere intruder. Shaw v. Hill, 79 Mich. 86; 44 N. W. Rep. 422.

$9. Plaintiff's Title, How Established. In actions of ejectment the burden of proof is upon the plaintiff to show in himself such a title as will entitle him to the immediate possession of the lands in dispute. The evidence by which this is accomplished will of course vary according to the source from which and the instruments by which the title is derived. If the plaintiff claims as heir, he must show title in his ancestor and establish the fact of his heirship, or if he derives his title by purchase, he may show a grant from the government and title under it in himself by a chain of conveyances. He may show an adverse possession for the period required by law and rely upon such possession as an absolute title in law. Titles from a common source are perhaps the most common of all

Revised Statutes of Illinois, 1845, 205, § 3; Starr & Curtis' Annotated Statutes, 980, $4.

titles relied upon in actions of ejectment; here the plaintiff must only show title from the common source to enable him to recover, unless the common source is derived by the defendant. Then proof of title in the common source must be made by the plaintiff. Titles derived through judicial proceedings, especially in courts of inferior jurisdiction, present in many instances, questions of great danger. The rule of law which requires in proceedings to divest titles of real property a strict compliance with all legal requirements is here applied in all its force. The methods of establishing the plaintiff's title in these actions both in cases where a privity of estate exists between him and the defendant, and when it does not, will be found fully discussed in appropriate chapters of this work.

$10. Titles Legal and Equitable.-A title of real estate is defined by Lord Coke to be the means whereby the owner has the just possession of his property.' There are several stages or degrees requisite to form a complete title. (1) The lowest and most imperfect degree of title is the mere possession, or actual occupation of the estate without any apparent right to hold or continue such possession. (2) The next stage or degree toward a good and perfect title is the right of possession which may be in one person while the actual possession is in another. The right of possession is either an apparent right which may be defeated by proving a better right, or an actual right which will stand the test against all claimants.* Titles to real estate are required in two ways: by descent and by purchase; by the term descent we understand in law hereditary succession. Descent is the title by which a person upon the death of his ancestor acquires the estate as his heir at law. Every other lawful means of acquiring title to real estate is said to be by purchase, whether it be by deed, by devise, by execution, by prescription, by possession or occupancy, or by escheat.'

Titles are also designated as legal titles and equitable titles. A legal title is one which will be enforced in a court of law, and having which a plaintiff in ejectment will be entitled to the possession of his estate. An equitable title is merely a

'Coke on Littleton, 345; 2 Black. Comm. 195.

3 Cruise Dig. Tit. 30, s. 1 to 4; 2 Black. Comm. 241; Coke on Littleton,

22 Black. Comm. 197; 2 Bouvier's 12. Law Dic., Title, 589.

QUESTIONS OF LOCAL LAW.

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right or interest in land, which, not having the properties of a legal estate, but merely a right of which courts of equity will take notice, requires the aid of equity to make it available in an action for the recovery of the possession.

§ 11. Questions of Local Law-Legal and Equitable Titles. -The title to real property, whether legal or equitable, and the mode of asserting that title in the courts, depend altogether upon the laws of the States in which such property is situated. Such questions are questions of local law, and the practitioner can rely with safety only upon the statutes and decisions of his own State.' In Maryland and in Illinois and some other States the distinction between common law and equity as known to the English law has been constantly pursued in their system of jurisprudence and the action of ejectment is the only mode of trying the title to real property. Here 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 his declaration, and in some cases at the time of the trial. He can not 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 title in himself. If the plaintiff makes out a prima facie legal title, the defendant may show an older and superior one in a stranger and thus defeat the action."

In States where there is no court of equity the courts of common law necessarily deal with the 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. Cases decided in those States having no courts of equity as contradistinguished from courts of common law can have little or no application to cases where equitable interests are involved in States where courts of equity are distinct from courts of law.*

'Smith's Lessee v. McCann, 65 Black) 342 (1861); Ryder v. Flan(U. S.) 24 How. 398 (1860). ·

2 Wilson v. Inloes, 11 Gill & J. (Md.) 358; Hammond v. Inloes, 4 Md. 140, 173.

3 Smith's Lessee v. McCann, 65 U. S. (24 How.) 398 (1860); Singleton v. Touchard, 66 U. S. (1

ders, 30 Mich. 336; Conrad v. Long, 33 Mich. 78; Harriet v. Childs, 44 Mich. 457; 7 N. W. Rep. 63; Ceiges v. Greiner, 68 Mich. 153; 36 N. W. Rep. 48 (1888).

Smith's Lessee v. McCann, 65 U. S. (24 How.) 398 (1860).

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