after a finding for the claimant, judgment may be signed and execution issue for the recovery of possession of the property or part (as the case may be), and for costs, &c.

Of the Requisites to support an Ejectment.-In order to maintain ejectment, the party at whose suit it is brought must have been in possession, or at least clothed with the right of possession, at all events at the date of issuing the writ (k).

The party who has the legal estate in the lands in question must prevail: hence, a party who claims under an elegit, subsequent to a lease granted to a tenant in possession, cannot recover: although he give notice to the tenant, that he does not intend to disturb the possession, and only means to get into the receipt of the rents and profits of the estate (l). In Lade v. Holford, Bull. N. P. 110, Lord Mansfield, C. J., declared, "that he and many of the judges had resolved never to suffer a plaintiff, in ejectment, to be nonsuited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagee; but that they would direct the jury to presume it surrendered." From this doctrine a conclusion has been drawn, which the case by no means warrants, viz. that a plaintiff in ejectment may recover on an equitable title. The true meaning of the resolution delivered by Lord Mansfield is, that where trustees ought to convey to the beneficial owner, it shall be left to the jury to presume that they have conveyed accordingly; or where the beneficial occupation of an estate by the possessor (under an equitable title) induces a probability that there has been a conveyance of the legal estate to the person who is equitably entitled to it, a jury may be directed to presume a conveyance of the legal estate (m). In these cases, when a conveyance is presumed, there is an end of the legal estate created by the term. But where the facts of the case preclude such presumption, or if there are not any premises, other than the mere lapse of time (n), or non-dealing with the term for a considerable period (0), from which a surrender of the term can be presumed (p); or, if it appear in a special verdict (q), or special case (r), that the legal estate is outstanding in another person, the party who is not clothed with the legal estate cannot prevail in a court of law.

(k) Keilw. 130, a.

time of its service.

Semble, also at the 15 & 16 Vict. c. 76, s. 181. The writ is in force for three months. Sect. 169.

(1) Doe v. Wharton, 8 T. R. 2.

(m) Per Kenyon, C. J., 7 T. R. 3, and 8 T. R. 122; England v. Slade, 4 T. R. 682; Garrard v. Tuck, 8 C. B. 231; Matthews on the Doctrine of Presumption, 226. (n) Doe v. Langdon, 12 Q. B. 711.

(0) Doe v. Plowman, 2 B. & Ad. 573; Cottrell v. Hughes, 15 C. B. 532.

(p) Doe v. Plowman, 2 B. & Ad. 573. Upon principle, a term of years assigned to attend the inheritance ought not to be presumed to be surrendered, unless there has been an enjoyment inconsistent with the existence of the term, or some act done in order to disavow the tenure under the termor, and to bar it as a continuing interest." Sugd. V. & P. (11th edit.) App. 1130. (q) Goodtitle v Jones, 7 T. R. 43. (r) Roe v. Reade, 8 T. R. 122.

"The doctrine, that the legal estate cannot be set up at law by a trustee against his cestui que trust, has been long repudiated.' Per Ellenborough, C. J., in Doe v. Wroot, 5 East, 138.

It is to be observed, that in the foregoing cases, in which a surrender was presumed, the presumption was made in favour of the party who had proved a right to the beneficial ownership; the possession was consistent with the existence of the surrender required to be presumed, and made it not unreasonable to believe that the surrender should have been made in fact. But where the court was called upon to declare that the presumption ought to be made in favour of a person who had proved no right to the possession, no title, no conveyance, and one who stood on mere naked possession, without any evidence how or when he acquired it, and who laid before the jury only a partial statement of the ground of presumption, the court refused to make it (s). A. devised an estate to trustees for a term of years, in trust to pay annuities, and for other purposes mentioned in the will, with remainder to B.; B., eighteen years after the death of A., leased the premises for lives. In an action by the lessee of B., the jury were told by the judge that they could not presume a surrender of the term; and this direction was held to be right (†).

By the 8 & 9 Vict. c. 112, however, it is now enacted, "that every satisfied term of years which, either by express declaration or by construction of law, shall, upon the 31st day of December, 1845, be attendant upon the inheritance or reversion of any lands (u), shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded to him if it had continued to subsist but had not been assigned or dealt with after the said 31st day of December, 1845; and shall, for the purpose of such protection, be considered in every court of law and equity to be a subsisting term." Sect. 2 enacts," that every term of years now subsisting or hereafter to be created becoming satisfied after the said 31st day of December, 1845, and which either by express declaration or by construction of law shall after that day become attendant upon the inheritance or reversion of any lands, shall, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid."

(s) Doe v. Cooke, 6 Bingh. 174.
(1) Day v. Williams, 2 C. & J. 460.

(u) If a term be assigned by mistake in

trust for persons not entitled to the inherit-
ance or reversion, the act has no opera-
tion.
Doe v. Jones, 13 Q. B. 774.

The above act in effect divides satisfied attendant terms into two classes: 1. Those which were satisfied on or before the 31st of December, 1845. 2. Terms which have become satisfied since that day. The latter are absolutely determined and extinguished for all purposes; but the former, if attendant by express declaration, may, for the purpose of protection to the person for whose benefit the assignment or declaration was made, be "considered to be a subsisting term," notwithstanding its extinction for all other purposes. See Cottrell v. Hughes, 15 C. B. 532. A term assigned before the 31st of December, 1845, in trust for a bonâ fide purchaser for value without notice, will continue to exist for his protection if necessary, but not for the benefit of the owner of the inheritance. Ibid., and see Doe v. Price, 16 M. & W. 603. A satisfied term will afford no defence against the owner of the inheritance, unless the defendant be equitably entitled to the benefit of the term. Doe v. Mousdale, 16 M. & W. 689. Where the claimant and defendant are respectively entitled to the benefit of a term, there must be a demand of possession by the trustee of the term before an ejectment can be maintained in his name, especially where the cestui que trusts have been in actual possession above twenty years before action. Doe v. Phillips, 10 Q. B. 130. The act does not apply to copyholds,

şect 3.

The plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of that of the defendant (x). Possession gives the defendant a right against every person who cannot show a good title (y). But a lessee will not be permitted to defend an ejectment against his own landlord, from whom he has received possession, on a supposed defect in the title of the landlord (2); nor if B., claiming under A., let lands for a year to C., and die, and A., after the expiration of the term, brings an ejectment against C., can C. dispute the title of A. (a); nor, where the tenant in possession has paid the rent to the plaintiff, can a third person come in and defend as landlord without the tenant, and dispute the plaintiff's title (b).

This

"Neither the tenant, nor any one claiming by him, can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord” (c). rule extends to tenancies at will or on sufferance (d). As, where A. let B. into possession of land under a contract of sale, which

(x) Per Cur., Martin v. Strachan, 5 ̊T. R. 110, n.

(y) Per Lord Mansfield, C. J., 4 Burr. 2487. See Daintry v. Brocklehurst, 3 Exch. 207.

(z) Driver v. Laurence, 2 W. Bl. 1259; Francis v. Harvy, 4 M. & W. 331.

(a) Barwick v. Thompson, 7 T. R. 488.
(b) Doe v. Smythe, 4 M. & S. 347; Doe

v. Birchmore, 9 A. & E. 662. See Balls v. Westwood, 2 Campb. 11.

(c) Per Dampier, J., 4 M. & S. 348, cited by Parke, J., Doe v. Austin, 9 Bingh. 45, 46. See also Cooper v. Blandy, 1 B. N. C. 45. But see a distinction in Hopcraft v. Keys, 9 Bingh. 613.

(d) Per Cresswell, J., in Doe v. Foster, 3 C. B. 229.

subsequently went off, it, was held that B. could not dispute A.'s title (e). There is not any distinction between the case of a tenant and that of a common licensee. The licensee, by asking permission, admits that there is a title in the landlord. Hence, where the plaintiff being in possession of a house, &c., defendant asked leave to get vegetables in the garden, and having obtained the keys for this purpose, fraudulently took possession of the house and set up a claim of title: it was held, that the defendant, having entered by leave of the party in possession, could not defend an ejectment, but was bound to deliver up possession to the party by whom she was let in, for she could not contest the title (f). And so, if a person obtains possession of premises by an arrangement with the tenant, whether collusive or otherwise. Premises being in possession of a tenant under an indenture of lease, a party claiming them by an alleged title adverse to that of the lessor, and prior to the lease, demanded them of the lessee, and ultimately obtained possession by paying him 207. The landlord afterwards brought ejectment against the party so in possession, the term having been forfeited by non-payment of rent, and there being no sufficient distress on the premises. It was held, that this case fell within the rule whereby the tenant is precluded from contesting his landlord's title (g). So also where a copyholder has been admitted to a tenement and done fealty to the lord of a manor, he is estopped, in an action by the lord for a forfeiture, from showing that the legal estate was not in the lord at the time of admittance (h).

But a tenant, though he cannot dispute his landlord's title at the time of the demise, may show that it has since expired (i), or been parted with (k). Where the plaintiff holding an estate under a lease for twenty-one years, underlet the same to the defendant for a year, and the defendant held over after the expiration of the twenty-one years, after which the plaintiff gave the defendant a regular notice to quit, which not being complied with, an ejectment was brought; it was held that it was competent to the defendant to show, that the lessor's title had expired, and that he had no right to turn him out of possession (l). So where the tenant has not received possession from a person to whom, however, under a misrepresentation or by mistake, he has paid rent, such payment of rent will not estop the tenant from setting up the title of the real owner (m). M., being seised in fee of land, mortgaged to O., but remained in possession, and afterwards demised part for a term to B., who also entered; after which M. mortgaged to H. H., after this, received

(e) Doe v. Burton, 16 Q. B. 807. (ƒ) Doe v. Baytup, 3 A. & E. 188. (g) Doe v. Mills, 2 A. & E. 17. (h) Doe v. Budden, 5 B. & Ald. 626. (i) Downs v. Cooper, 2 Q. B. 256; Mountnoy v. Collier, E. & B. 630.

(k) Doe v. Watson, 2 Sta. 230, cited by

Tindal, C. J., 4 M. & G. 152.

(1) England v. Slade, 4 T. R. 682; Doe v. Ramsbottom, 3 M. & S. 516. See Gravenor v. Woodhouse, 1 Bingh. 38; Cornish v. Searell, 8 B. & C. 471; Brook v. Biggs, 2 B. N. C. 572.

(m) Fenner v.

Duplock, 2 Bingh. 10.

rent from B., and demised the other part to A. Afterwards B. and A., on notice from O., paid O. rent. H. then brought ejectment (after notice to quit) against B and A. It was held that B. as well as A. might show in defence the prior mortgage to O., O.'s notice to them, and their payment of rent to O.; for, although B. could not dispute M.'s title at the time of the demise, yet he might show that H. had not any derivative title from M., and he was not precluded by having paid rent to H., under a mistake of the facts (n).

II. By whom an Ejectment may be brought (0). Administrator, and before administration granted (p).

Bargainee, under a commission of bankrupt. 1 Wils. 276. See 12 & 13 Vict. c. 106, s. 208.

Churchwardens and overseers. The 59 Geo. III. c. 12, s. 17, empowers churchwardens and overseers (q), and their successors, to accept and hold, in the nature of a corporation, all real property belonging to the parish. But they are not by this statute made a proper body corporate; and therefore a demise to them is effectual, upon their assent and entry, without their acceptance by an instrument under seal (r). In a case where it did not appear who had the legal property at the time of the act passing, but rent had been paid to the churchwardens and overseers as such; it was held, that the property belonged to the parish, and that the present churchwardens and overseers might recover the same, having given a notice to quit, although defendant claimed to hold under a lease granted by former churchwardens and overseers, for an unexpired term; inasmuch as such lease having been granted before the act, it conveyed no legal interest; and the defendant therefore might be treated as a tenant from year to year, whose tenancy had been determined by the notice (s). Under this act, property held for the benefit of a parish, vests in the churchwardens and overseers (t), where there are not any known trustees in existence (u), nor any other person in whom the legal estate is vested (x); and the statute extends to tenements, the profits of which are applicable to the

(n) Doe v. Barton, 11 A. & E. 307; recognized in Claridge v. Mackenzie, 4 M. & G. 143.

(0) Committee of a lunatic's estate cannot bring an ejectment. Hob. 215; Hutt. 16. See 16 & 17 Vict. c. 70.

(p) Patten v. Patten, Alc. & N. 493; but see Keene v. Dee, Alc. & N. 496, n. (q) There must be both for the statute to operate. Woodcock v. Gibson, 4 B. &

C. 462.

(r) Smith v. Adkins, 8 M. & W. 362; and see Gouldsworth v. Knights, 11 M. & W. 337.

(s) Doe v. Terry, 4 A. & E. 274. (t) Doe v. Hiley, 10 B. & C. 885. (u) The Churchwardens of Deptford v. Sketchey, 8 Q. B. 394.

(x) Per Denman, C. J., Allason v. Stark,

9 A. & E. 255.