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any act of the lessor ainounting to an ouster of the tenant would indicate in the strongest manner the withdrawal of his assent and constitute a determination of the tenancy.

The grantee of a tenant at will in this respect is in no better position than the tenant. The tenant has no certain and indefeasible estate, nothing that he can grant to a third person, and, therefore, his grantee can not maintain the action.

The Indiana opinion seems to be based upon the case of Stone v. Grubbam, cited by Runnington on Ejectment. But this case sustains the tenant's right to the action against an intruder, on the theory that ejectment is in its nature an action of trespass supposed to have been committed vi et armis, the wrong committed being personal to the party in actual possession, and therefore the tenant at will may make a lease to punish the trespass and ejectment, otherwise there would be an injury done and no one competent to redress it. Stone v. Grubbam, 1 Rolle, 3; Runnington on Ejectment, 23.

Runnington says: "By the modern practice, the defendant is obliged by rule of court, to confess lease, entry and ouster, yet that rule was only designed to expedite the trial of the plaintiff's right, and not to give him a right which he had not before. Hence, it must appear that the plaintiff had actually the possession, and was ousted thereof by the defendant; for the ejectment is an action of trespass in its nature, and is said to have been committed vi et armis; it must, therefore, be done to the person himself complaining, and not to another who had the plaintiff's possession, though his title may be affected by the ouster. For it would be absurd tɔ state that the defendant, vi et armis, ejected the plaintiff, when it appears, by his own showing, that he had not the actual possession, but that it was, at the time of the ouster, in another. Therefore, if A, lessee for years, make a lease to B at will, and B is ejected, A can not sustain this action upon that ouster, because, though the possession of B was in law the possession of A, yet the trespass, vi et armis, which is complained of, must be against the actual possession, which was in B. But it seems in this case that B (though only tenant at will) may make a lease to punish the trespass and ejectment; otherwise there would be an injury done, and no one competent to redress it." Runnington on Ejectment, 23.

Where the obligce of a bond to make titles took possession, under a parol agreement, to the effect that he might occupy the premises until the bond matured, it was held he was a mere tenant at will of the obligor, and not entitled to maintain ejectment against the latter, or one taking title from him. Richardson v. Thornton, 7 Jones (N. C.), L. 458; Love v. Edmonston, 1 Ired. (N. C.) Law, 152.

§ 33. A Tenant by Curtesy.-As a general rule, a husband, who is a tenant by the curtesy, of his wife's lands, may maintain an action for the recovery of the lands in his own name,'

Tucker v. Vance, 2 A. K. Marsh. (Ky.) 458; Wilson v. Arentz, 70 N. C. 670; Chambers v. Handley, 3 J. J. Mar. (Ky.) 98; Gregg v. Tesson, 1

Black (U. S.), 150; Jackson v. Leek, 19 Wend. (N. Y.) 339; Prescott v. Jones, 29 Ga. 58; Thompson's Lessee v. Green, 4 Ohio St. 216.

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but it is held in some States, that his wife must join in the

action.'

§34. Tenants in Common-Joint Tenants and Coparceners. It is a maxim of the common law, that the possession of one tenant in common, joint tenant or coparcener, is also the possession of his companion in estate, and it therefore follows, that the possession of one such tenant or coparcener, can never be considered under the common law as adverse to the title of his companions, unless it is attended by circumstances of an adverse character and interest; or, in other words, whenever a tenant in common, joint tenant or coparcener is in possession, his companion is, in contemplation of the common law, in possession also, and it is necessary, in order to enable his companion to maintain ejectment, to rebut this presumption by proof of an actual ouster."

§35. Tenants in Common-Extent of Recovery.-A tenant in common with others, either by himself or with all his co-tenants, may bring and maintain an action against a trespasser upon his real estate for the possession of so much thereof as he may show himself entitled to; and upon the establishment of his claims to the property, he may have judgment for so much only as he can show his interest to be.'

36. Tenant by Elegit-Obsolete in America. It is laid down in the case of Lowthl v. Tomkins," that if a tenant by elegit desire to obtain actual possession of the lands, he must bring an ejectment, for the sheriff, under the writ, delivers only the legal possession; which doctrine is recognized by Lord Kenyon, C. J., in the case of Taylor v. Cole;" but in the case of Rodgers v. Pitcher,' it is said by Gibbs, C. J.: "I am aware that it has in several places been said, that the tenant in elegit can not obtain possession without an ejectment, but I have always been of a different opinion. There is

'Carter v. Roland, 53 Tex. 540. 'Barnitz v. Casey, 7 Cranch (U. S.), 456 (1813); Avery v. Hall, 50 Vt. 11 (1871); Vance v. Schroyer, 77 Ind. 501 (1881); Hammond v. Morrison's Lessee, 33 Md. 95 (1870); Adams on Ejectment, 135.

Ford v. Gray, Salk. 285: Smales v. Dale, Hob. 120; Doe v. Keen, 7 T. R. 386.

Matlis v. Boggs, 19 Neb. 698; 28 N. W. Rep. 325 (1886); Cruger v. McLaury, 41 N. Y. 219; Dewey v. Brown, 2 Pick. (Mass.) 387; Gray v. Givens, 26 Mo. 291; Dawson v. Mills, 32 Pa. St. 302; see chapter VI, Cotenants and Tenants in Common. 52 Eq. Ca. Ab. 380. 6 3 T. R. 295.

6 Taunt. 202.

no case in which a party may maintain an ejectment in which he can not 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 these points, which I only throw out in answer to the argument that has been used."

When 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; because the lessee's title being prior in point of time, the legal estate was in him;' but where the possession of the tenant was subsequent to the date of the judgment, although prior by two years to the issuing of the writ of elegit and inquisition. thereon, the title of the tenant by elegit was not barred;' 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.'

By the common law, a man could only have satisfaction of goods, chattels and the present profits of lands, by the writs of fieri facias or levari facias; but not the possession of the lands themselves. The statute therefore granted the writ of elegit (called an elegit because it is in the choice or election of the plaintiff whether he will sue out this writ or one of the former), by which the defendant's goods and chattels are not sold, but only appraised; and all of them (except oxen and beasts of the plough) are delivered to the plaintiff at such reasonable appraisement and price in part satisfaction of his debt. If the goods are not sufficient, then the moiety or one half of his freehold lands which he had at the time of the judgment given, whether held in his own name, or by another in trust for him, are also to be delivered to the plaintiff, to hold until, out of the rents and profits thereof, the debt be levied, or until the defendant's interest be expired. During this period, the plaintiff is called tenant by elegit. 3 Blk. Com., 418, 419.

The fi. fa. is now the uniform process to sell lands, and the elegit is abandoned. 4, Kent's Com., 436, note.

To recover in ejectment under a purchase at a sheriff's sale, on a judgment against a party not in possession, the plaintiff 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. And it was 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. Jackson v. Town, 4 Cow. (N. Y.) 599.

Doe v. Wharton, 8 T. R. 2.
Doe v. Hilder, 2 B. & A. 782.

Adams on Ejectment, 117; Doe v. Creed, 2 M. & P. 648.

TRUSTEES AND CESTUIS QUE TRUST.

85

Where

37. Trustees and Cestuis Que Trust.-A trustee may recover lands in ejectment against his cestui que trust,' unless, as under certain circumstances, a conveyance of the legal title is presumed. And a cestui que trust, entitled to the possession of land, may maintain the action against his trustee. a cestui que trust is entitled, as such, to the possession of land, and is ousted from it by a stranger, he may maintain ejectment for its recovery, notwithstanding the legal estate is still in the trustee. But this does not deprive the trustee, holding the legal title, of his right to maintain the action himself.

He may bring ejectment, and a wrong-doer can not set up the title of the cestui que trust. The action may also be maintained by the heirs at law of the surviving trustee, the suit not being adverse to the cestui que trust. As against an intruder, or one showing no title, it is a matter of no importance whether the legal title of the land is absolutely in the holder or whether he holds it in trust for another."

The rule is well settled that a trustee may recover in ejectment the lands affected by the trust even as against the cestui que trust. A court of law may indeed investigate some questions of fraud, and when proved treat a deed as a nullity and conveying no title, but in general it will not go behind the naked legal title and inquire where the equities are. Even in a case of naked trustee, the law is so strenuous for the legal title that it enables the trustee to recover in ejectment against the cestui que trust. Kirkpatrick v. Clark, 132 Ill. 342 (1890); 24 N. E. Rep. 71.

$38. The Trustee Holds the Legal Estate. The title of the cestui que trust is merely an equitable title, and the trustee being vested with the legal estate, remedies in the nature of ejectment must, of course, be brought in his name."

1 Matthews v. Ward, 10 Gill & J. (Md.) 443; Barbour on Parties, 263; Beach v. Beach, 14 Vt. 28; Reade v. Reade, 8 T. R. 118; Starke's Lessee v. Smith, 5 Ohio, 455; Stearns v. Palmer, 10 Met. (Mass.) 35; Den v. Bordine, 1 Spencer (N. J.), 394; Nicoll v. Walworth, 4 Den. (N. Y.) 385.

Beach v. Beach, 14 Vt. 28.

* Presbyterian Cong. v. Johnston, 1 Watts & S. (Penn.) 9.

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38.

Hopkins v. Ward, 6 Mun. (Va.)

Hopkins v. Stephens, 2 Rand. (Va.) 422.

Hunt v. Crawford, 3 Pa. St. 426. 8 Crunkleton v. Evert, 3 Yeates (Penn.), 570.

Lair v. Hunniker, 28 Pa. St. 115. 10 Adams on Ejectment, 127; Stearns v. Palmer, 10 Met. (Mass.) 35; Wake v. Tinkler, 16 East, 36; Goodtitle v. Jones, 7 T. R. 47; Methodist Soc. v. Bennett, 39 Conn. 293; McClurg v. Wilson, 43 Penn. St. 439; Baker v. Nall, 59 Mo. 265; Kirkland

In California a trustee, holding the legal title to real estate, is the real party in interest, so far as the defendant is concerned, so as to enable him to maintain an action to recover such real estate. Anson v. Townsend, 73 Cal. 415; 15 Pac. Rep. 49 (1887).

When it appeared that the plaintiff in an ejectment was appointed trustee under a marriage settlement, and vested with the title for the use of a wife, with power of disposition in her by will, and in the event of her intestacy, then the property was to go to her children. Pending the action the wife died. It was held that the trustee could continue the action so as to enable him to execute the trust, by recovering the possession and turning it over to those entitled to it, and to accomplish this end he was allowed to add such demises as might be necessary to bring in the children as formal parties. Findlay v. Athorpe, 48 Ga. 537.

Where the defendant deeded to the plaintiff as trustee, "to seize, sell, and dispose of" the real estate in dispute, and apply the proceeds to the payment of certain debts, it was held that sufficient title passed to the trustee to support ejectment to recover the lands, to enable him to carry into effect the objects of the trust. Cameron v. Phillips, 60 Ga. 434.

$39. Trustees and the Statute of Uses.-In all cases in which the trusts are not executed by the statute of uses, the legal estate vests in the trustees, and of course, in such cases, they may maintain ejectment.'

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 in trust 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. In speaking of this distinction, Sir James Mansfield 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 the trustee; for how can a man be said to permit and suffer, who has no estate and no power to hinder the cestui que trust from receiving?" s And in this connection it is stated in Adams on Ejectment:

v. Cox, 94 Ill. 400; Trustees M. E. Church v. Stewart, 27 Barb. (N. Y.) 553; Western R. R. Co. v. Nolan, 48 N. Y. 517; Moore v. Burnet's Lessee, 11 Ohio, 334; Beach v. Beach, 14 Vt. 28; Cox v. Walker, 26 Me. 504; Hopkins v. Stephens, 2 Rand. (Va.) 422; First Baptist Soc. v. Hazen, 100 Mass. 322: Matthews v. Ward, 10 G. & J. (Md.)443; Fitzpatrick v. Fitzgerald, 13 Gray (Mass.), 400; Chapin v. First Universalist Soc., 8 Gray (Mass.), 581: Doggett v. Hart, 5 Fla. 215.

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1 Adams on Ejectment, 127.

Shep. Touch. 482; 1 Eq. Cas. Ab. 383, 384; Shapland v. Smith, Brown, Chan. Cas. 75; Silvester v. Wilson, 2 T. R. 444; Jones v. Ld. Say and Sele, 8 Vin. Ab. 262; Broughton v. Langley, Salk. 679; 1 Lut. 814; Burchett v. Durdant, 2 Vent. 311; Tenny v. Moody, 3 Bing. 3.

Doe v. Biggs, 2 Taunt. 109, 113.

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