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42. Occupants-Persons in Possession-Questions of Fact.

43. Servants and Employes in Possession.

44. Joinder of Defendants.

45. Alienation of the Premises by Defendant Pending Suit.

46. Parties to Actions-Statutory Provisions.

§ 1. The Parties. In proceedings to recover the possession of land and tenements, as in nearly all other judicial proceedings, there are two parties. The party who seeks to recover the possession of the premises in question is called the plaintiff, and the party who resists it is called the defendant. In ejectment there is nothing necessarily different as regards the parties to the action from the rules governing parties to other actions in general.

§ 2. Plaintiffs in Ejectment.-As a general rule the proper person to be the plaintiff in actions for the recovery of the possession of real property is he who 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 or some share, interest or portion thereof.

The rules of law governing parties to the action of ejectment will be necessarily discussed to some extent under different heads, into which the general subject is divided. As, for example, in the chapters on ejectment between vendor and vendee, mortgagor and mortgagee, landlord and tenant, etc., the characteristics of the parties to these relations are generally discussed as parties to the action of ejectment.

In this chapter the discussion is confined more especially to cases concerning persons occupying positions in which there exists no privity of estate between them, and the persons alleged to be wrongfully in possession of the premises in dispute.

§3. The Nature of the Plaintiff's Title.-The word title is here used in its ordinary signification, as denoting the plaintiff's legal, that is to say, actual right to the disputed property. Whenever the defendant has been let into possession by the lessor, or those under whom he claims, he is estopped from disputing the title in this sense of the word, although he may show its subsequent expiration, and it is only

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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. These cases chiefly arise where the relationship of landlord and tenant has subsisted between the parties, and will be treated of in a subsequent chapter. The present consideration is limited to those cases in which it is incumbent upon the plaintiff to show some title to the possession beyond the mere right in the defendant to continue therein by reason of a privity existing between the parties.'

§ 4. Joinder of Causes, etc., in Ejectment.-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 can not know how they claim, whether jointly or 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 make a defense specially for such portion of the lands 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 or impeded by the 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 making defense for the whole. How can he call on the plaintiff to prove how much 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 'Adams on Ejectment, 104; Sulli- R. 682; Doe v. Ramsbottom, 3 M. & van v. Stradling, 2 Wils. 208; Driver v. Lawrence, Blk. 1259; Parker v. Manning, 7 T. R. 537; Hodson v. Sharpe, 10 East, 355; Doe v. Mitchell, 1 B. & B. 11; England v. Slade, 4 T.

S. 516; Doe v. Watson, 2 Star. 230;
Baker v. Mellish, 10 Ves. Jun. 544;
Gravenor v. Woodhouse, 1 Bing. 38;
Phillips v. Pearse, 5 B. & C. 433.

claims? These were facts known only to himself and 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.'

5. Joinder of Tenants in Common, Joint Tenants and Coparceners. The common law rule which permitted tenants in common, joint tenants and coparceners to maintain the action of ejectment, required them to join in the action, and this rule is probably in force in the United States where it has not been changed by statutory enactments. We quote the Statute of Illinois as a fair illustration of these statutes.

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.

§ 6. Aliens.-Under the English law an alien could not maintain an action of ejectment, and this rule has been recognized in some of the American States. But, in many of the States, resident aliens may acquire real estate in the same manner as native born citizens, and hold it the same as against all persons excepting the State. This being the case, it follows, as a legal sequence, that they may recover the possession of real estate in an action of ejectment."

In Maryland, it is held that the title of an alien friend can not be divested but by some act done by the State to acquire the possession, and a judgment for the possession of the land in the right of the alien was upheld. McCreery v. Allender, 4 H. & McH. (Md.) 409.

In California, it is held that a non-resident alien can acquire title to real property by purchase, or other act of the party, though not by descent or operation of law, and until office found, no individual can question the

1 McGerory v. Little, 15 Calif. 27; Greer v. Mezes, 65 U. S. (24 How.) 268 (1860).

Webster v. Vanderventer, 6 Gray, (Mass.) 428 (1856); see Hicks v. Rogers, 4 Cranch (U. S.), 165 (1807); Poole v. Fleeger, 11 Pet. (U. S.) 185 (1837); Hasbrook v. Bunce, 62 (N. Y.) 475 (1875).

8 Laws of Ill. 1872, 370.

Coke on Littleton, 129; Shep.

Touchstone, 204; White v. Sabariego, 23 Tex. 243; Hardy v. De Leon, 5 Tex. 240.

5 Barges, etc., v. Hogg, 1 Hayw. (N. C.) 485.

6 Bradstreet v. Supervisors, 13 Wend. (N. Y.) 546; Ford v. Harrington, 16 N. Y. 285, 294; Overing v. Russell, 32 Barb. (N. Y.) 263; Jinkins v. Noel, 3 Stew. (Ala.) 60.

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rights or title of a plaintiff on the ground of alienage or non-residence. Norris v. Hoyt, 18 Cal. 217; People v. Folsom, 5 Cal. 372.

§ 7. Copartners.-Real property owned by a copartnership is in general held as partnership assets upon the dissolution of the firm. As between the members the title vests in the individual partners as tenants in common.' The law requires that when the action of ejectment is brought to recover the possession of lands and tenements belonging to a copartnership, it must be brought in the name of all the members in whom the legal title is vested. If it is vested in a single partner he should bring the action in his own name, and a surviving partner may recover in ejectment against a defendant having no title. The holding of real estate bya partner is in the nature of a trust for the partnership until the trust is discharged and then the partners hold for themselves; but the particular quantity of the estate of each partner can never be determined until the final adjustment of the partnership affairs.*

One partner, whatever his rights against the other members of the firm, can maintain ejectment for the whole tract of land belonging to the partnership, as against a mere intruder. Smith v. Smith, 80 Cal. 323; 21 Pac. Rep. 4; 22 Pac. Rep. 186 (1889).

Purchaser of a partner's share or interest in the lands of an association can not maintain ejectment for the land purchased. His remedy is in a court of equity, where an accounting can he had. Clagett v. Kilbourne, 1 Black (U. S.), 346.

Where the interest of a partner is sold on execution it creates a dissolution of the firm, and the purchaser becomes a tenant in common as to the realty, with the remaining partner. Carter v. Roland, 53 Tex. 540.

The

§ 8. Corporations.-A corporation endowed with the power and having the capacity to hold real property may, in all cases, maintain an action of ejectment to recover the possession of it, when wrongfully withheld, the same as a private person. modern rules of law governing methods of determining the title and possession of real property, applies to corporations of every kind, whether in the character of plaintiffs or defendants.'

In Missouri, ejectment will lie against a county to recover land which has been wrongfully taken and converted into a public road, through the

1 McGrath v. Sinclair, 55 Miss. 89.

* Lindley on Partnership, 482.

3 Doe v. Baker, 2 Moore, 189.

6

Henly v. Branch Bank, 16 Ala. 552.

Kyd on Corporations, 187; Angell

& Ames on Corporations, §§ 370, 631;

♦ Robinson v. Roberts, 31 Conn. 145 Society v. Wheeler, 2 Gall. (U. S.) (1862).

B Parsons on Partnership, 387.

105.

action of the County Court, in which 2 Wag. St. Mo. 1870, p. 1218, confers authority to locate, open, and improve roads. McCarty v. Clark County, 101 Mo. 179; 14 S. W. Rep. 51 (1890).

Land was conveyed to certain trustees of a union meeting and school house in trust for the benefit of said meeting and school house. Afterward a school district, which was created after the land was conveyed, erected and maintained a school house on the land. Held, that the school district thereby acquired no title to the land, since its use of the land was merely permissive. Common School Dist. of Main Tp. v. Richard, (Pa.) 21 Atl. Rep. 821; Am. Dig. 1891, 42.

§ 9. Municipal Corporations.-A municipal corporation entitled to the possession and control of streets and public places, may, in its corporate name, recover the same in ejectment. Where it possesses the fee, although in trust for public uses, there are no technical obstacles in the way of maintaining such an action against the adjoining proprietor or whoever may wrongfully intrude upon, occupy or detain the property. But where the adjoining proprietor retains the fee, the courts have overcome the technical difficulty by regarding the right to the possession, use and control of the property by the municipality as a legal, and not a mere equitable right.'

Where a corporation has the legal title to the soil of the commons or public streets, it may maintain ejectment to recover the possession thereof. But Law, J., expressed, arguendo, the opinion that where the public or corporation have an easement only, and not the fee, the remedy for a violation of the right is not by private action, but by public prosecution. Savannah v. Steamboat Co., R. M. Charl. (Ga). 342 (1830).

Where the public acquire only the use, and the fee remains in the original proprietor or abutter, the latter is considered the owner of the soil for all purposes not inconsistent with the public rights, and may maintain actions accordingly. Thus it has been held that he may maintain ejectment against an individual who, without lawful authority, erects a private building upon a public square under a lease from the local authorities, these having no power to authorize such a use. The recovery is, of course, subject to the public easement.

School Dist., 1 Jones (Penn.), 444; "Town Commons," Commissioners v. Boyd, 1 Ired. (N. C.) 194 (1840); "Public Square," M. E. Church v. Hoboken, 33 N. J. L. 13 (1868).

12 Dillon on Municipal Corpora- 11 Minn. 119 (1866); Klinkener v. tions, § 662. Ejectment will lie by municipal corporations, to recover the possession. "Church Grounds," Hannibal v. Draper, 15 Mo. 634 (1852); "Market Grounds," Drummer v. Jersey City, 1 Spen. (N. J.) 86 (1843); "Public Square," Winona v. Huff,

22 Dillon on Municipal Corporations, § 663; citing Stites v. Curtis,

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