judges,(i) that damages only can be recovered in ejectment; and an entry of a judgment is still extant, given in the latter of those years, that the plaintiff in ejectment shall recover both his damages and his term.(k) It is said, indeed, in argument as early as the year 1458, that the term may be recovered in ejectment, but no reason is assigned for the assertion, nor is any decision upon the point on record until the time of the entry already mentioned. (1)

But. whatever might be the causes which occasioned this alteration, the effects they produced were highly important. A new efficacy was given to the action of ejectment, the old real actions fell into

disuse, and in the subse-*quent periods of our history, the ac- [*9] tion of ejectment became the regular mode of proceeding for the trial of possessory titles.

That an action of ejectment, by means of this alteration in its judgment, might restore termors to possesion who had been actually ejected from their lands, is sufficiently obvious; but it is not, perhaps, so evident how the same proceeding could be applicable to a disputed title of freehold, or why, as soon after happened, the freeholder should have adopted this novel remedy. No report of the case in which this bold experiment was first made is extant; but from the innumerable difficulties which attend real actions, it is not surprising that the freeholder should take advantage of any fiction which enabled him to avoid them; and as the Court of Common Pleas possessed an exclusive right of judicature in matters of real property, it is probable that the experiment originated in the Court of King's Bench, as an indirect method of giving to that Court a concurrent jurisdiction with the Common Pleas. But, however this may be, the experiment succeeded, and the uses of the action, as well as its nature, were changed.

When first the remedy was applied to the trial of disputed titles, the proceedings were simple and regular, different but little from those previously in use, when an ejectment was brought to recover the damages of an actual trespass. The right to the freehold could only be determined in an indirect manner. It was term which was to be recovered by the judgment in the action, and it was therefore necessary that a term should be created; and as the injury complained of in the writ was the loss of

(i) Per Choke, J. Mich. 33 Hen. VI. 42. 19. (k) Rast. Ent 252 (e)

(1) Brooke's Ab. tit. Quare ejecit. folio 167.

the possession, it was also necessary that the person to whom the term was given, should be ejected from the lands.

[*10]

*In order to obtain the first of these requisites, namely, a term, the party claiming title entered upon the disputed premises, accompanied by another person, to whom, whilst on the lands, he sealed and delivered a lease for years. This actual entry was absolutely necessary; for, according to the old law of maintenance, it was a penal offence to convey a title to another, when the grantor himself was not in possession. And, indeed, it was at first doubted, whether this nominal possession, taken only for the purpose of trying the title, was sufficient to excuse him from the penalties of that offence.(m)

It is from the necessity of this entry, also, that the remedy by ejectment is confined to cases in which the claimant has a right to the possession. When only a right of property, or a right of action, remained to him, the entry would be illegal, and consequently not sufficient to enable the party making it to convey a title to his lessee: and as the principles of the action still remain the same, although its proceedings are changed, the right to make an entry continues to be requisite, [1] though the entry itself is no longer necessary. [2]

ses.

(m) 1 Ch. Rep. Append. 29.

[1] Ejectment will not lie by a person already in possession of the premiJackson ex dem. Clowes vs. Hakes, 2 Caines' Rep. 335.

"

Without a right of Entry the Plaintiff cannot recover in an action of "Ejectment." Colston vs. M'Vay, 1 Marsh. Rep. (Ky) 251.

When a person recovers a judgment in ejectment, and neglects to enforce it within the period laid in his demise, his right of entry under that judgment is altogether gone; and if there have been an adverse possession for 20 years, during which such judgment was recovered, it will not avail him to take the case out of the Statute of Limitations. Jackson ex dem Beekman & Al. vs. Haviland, 13 Johns. Rep. 229.

A lessor in Fjectment ought to have a subsisting title or interest in the premises. Jackson ex dem. Starr & Ux. vs. Richmond, 4 Johns. Rep. 483. Jackson ex dem. Livingston vs. Sclover, 10 Johns. Rep. 368.

An entry into part of a tract of land, with a claim to the whole, is equivalent to an entry into the whole. Jackson ex dem. Gansevoort & Al. vs. Lunn, 3 Johns. Cases, 109.

[2] In an action of Ejectment, it was held, that an actual entry was not necessary in any case, except to avoid a finc. Jackson ex dem. Bronck vs. Crysler, 1 Johns. Cas. 125.

It is not necessary, to entitle the owner of land to recover in Ejectment, that he should prove, that he, or those under whom he claims, have been

The lessee of the claimant, having acquired a right to the pos session, by means of the lease already mentioned, remained upon the

in possession within twenty-one years, [The Time limited by the Laws of Pennsylvania,] before bringing suit. Possession by operation of law, accompanies the title, unless the contrary is shewn, and until it is shewn.Hawk vs. Senseman and Others, 6 Serg. & R. Rep. 21, 23. & Vide, Clay vs. White & Others, 1 Manf. Rep. 162.

A previous entry on the land is not necessary to enable the plaintiff tỏ support his action: the action of Ejectment may be maintained, if the plaintiff have a right to enter. "The question is not whether he has entered, but whether he may enter." Lessee of Rugge vs. Ellis, 1 Bay's Rep. 107, 111. Hylton's Lessee vs. Brown, 1 Wash. Circ. Ct. Rep. 204.

The Plaintiff in Ejectment need not be in actual possession within seven years if he has a title by deed or grant, he has a constructive possession by operation of law, which preserves his right of entry, until it be destroyed by an actual adverse possession, continued for seven years together; if he has never seen his land-if he has not entered upon it for fifty years, his title may be good, if his adversary hath not, been in possession for seven years continually, during the whole time with a colour of title. Young vs. Irwin, 2 Hayw. Rep. 11.

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"In this country there is no necessity for an entry until an actual adverse possession commences, and that actual adverse possession must be con"tinued for seven years without entry or claim on the other side, before it can toll the Plaintiff's right of entry. The contrary doctrine in this coun"try would be attended with consequences very fatal to titles for land." Den ex dem. Park vs. Cochran & Al. Hayw. Rep 180. & Vide Den ex dem. Slade vs. Smith, Ibid. 249. Taylor vs. Buckner, 2 Marsh. Rep. (Ky.) 19.

In order to support even a writ of right, it is not necessary to prove an actual entry under title, or actual taking of esplees, a constructive seisin in deed is sufficient. Green vs. Liter & Others, 8 Cranch's Rep. 229.

The construction which would require an entry into lands, by the owner, within a limited time after the title accrued, unless there be some adversary title or possession to be defeated by such entry, "is totally inadmissble. How such an opinion could have been entertained is unaccountable. "There is no foundation for it"-Per MARSHALL, CH. J. delivering the Opinion of the Court, in Shearman vs. Irvine's Lessee, 4 Cranch's Rep. 369.

46

It is not necessary, that either the lessor of the plaintiff or his ancestors should ever have had actual possession; legal possession or Seisin in Law is sufficient to sustain his suit. In Jackson ex dem. Beekman vs. Sellick, 8 Johns. Rep. 262, it was decided, that where a feme overt is the owner of wild and uncultivated land, she is considered in law, as in fact, possessed, so as to enable her husband to become a tenant by the curtesy-and KENT, Ch. J. in delivering the opinion of the Court, among other things, said: "There "was no pedis possessio or possession in fact, of the premises, in the popu"lar sense of the words, by either Matthews or his wife during the cover"ture; for the lands continued vacant, or remained as new lands, wild and "uncultivated, from the date of the patent in 1704, to the time of the commencement of the adverse possession in 1772. The title under the Patent to an undivided eighth part of the premises, clearly existed in Matthews' "wife. She derived it by will from her mother, who was one of the four co"heirs of Henry Van Ball. The question is, was she not to be considered

land, and then the person who came next upon the freehold, animo possidendi, or according to the old authorities, even by chance, (n) was (n) 1 Lil. Prac Reg 673.

as seised in fact of these premises, so as to enable her husband to become 66 a tenant by the curtesy? To deny this, would be extinguishing the title "of tenant by the curtesy, to all wild and uncultivated land. It has long "been a settled point, that the owner of such lands is to be deemed in pos"sesssion, so as to maintain trespass. The possession of such proper'ty follows the title and so continues, until an adverse possession is clearly "made out. This is the uniform doctrine of this Court; and there is no "reason why the same rule should not apply where the title by curtesy is "in question." And after citing Co. Litt. 29. a.; De Grey vs. Richardson, 3 Atk. 469, and Sterling vs. Penlington, (7 Viner, 149. pl. 11. Curtesy A.) he adds; "These cases are as strong as the present, and prove that "actual entry or pedis possessio, is not absolutely requisite, and that if the "party is constructively seised in fact it will be sufficient."―This case was cited and confirmed in Jackson ex dem. Austin & Al. vs. Howe & Al. 14 Johns. Rep. 406; and in Jackson ex dem. Swartwout & Ux. vs. Johnson, 5 Cow. Rep. 102, and in Jackson ex dem Woodruff & Al. vs. Gilchrist, 15 Johns. Rep. 117.

But in the case of Den ex dem. Johnson vs. Morris, (2 Halstead's Rep. 6.) it was held, that the lessor of the plaintiff, in an action of ejectment, must always count upon and shew a possession of the Land within the time to which the right of entry is limited viz. within twenty years next before the action is brought. But he need not shew a possession of twenty complete years, or of any other number of years, further than is necessary to constitute a full and peaceable possession. And the possession to be proved, being a mere matter in pais, may be shewn as well without deed as with it; though when without it, it will always be looked upon with greater jealousy, and be overcome with greater ease.

And in the case of Clay vs. Ransome, (1 Munf. Rep. 455.) The court said, "An ejectment is a possessory action, and only a competent remedy where the lessor of the plaintiff may enter: therefore it is always necessary for the plaintiff to shew that his lessor had a a right to enter; by "proving a possession within 20 years, or accounting for the want of it "under some of the exceptions allowed by the statute."

16

But the same Court in the case of Clay vs. White & Al. (1 Munf Rep. 162, 170.) said, (TUCKER, J. delivering the Opinion of the Court.) Upon common law principles, then, I am of opinion that an actual entry in"to waste and unappropriated Lands granted by the Commonwealth is not necessary, in order to complete the patentee's title thereto; but that the 66 same is, upon the delivery of the Patent, absolute and complete for every purpose whatsoever, whether to maintain an action, or to transmit an "inheritance, or to grant the same by deed, or by last will and testament." -& Vide, See vs. Greenlee, 6 Munf. Rep. 303.

66

It seems, that the Statute of 21 Jac. 1. c. 16. did not extend to the Pro vince of Maryland-Lloyd's Lessee vs. Hemsley, 1 Har. & M'Hen. Rep. 28.-Lee's Lessee vs. Bladen & Al. Ibid. 30.-Drane vs. Hodges, Ibid. 518.

A deed of bargain and sale in New-Jersey, passed the possession, without any actual entry by the bargainee, and this possession the law presumes to continue, until the contrary is proved. Lessee of Bayard vs. Colfax et Al. c. G. v. S. N J. April, 1821. M. S. (Cited in Coxe's Digest, p. 555.)

accounted an ejector of the lessee, and a trespasser on his possession. A writ of trespass and ejectment was then served upon the ejector by the lessee. The cause regularly proceeded to trial as in the

common action of trespass; and as the les-*see's claim could [* 11] only be founded upon the title of his lessor, it was necessary to prove the lessor's interest in the land, to enable the plaintiff (the lessee) to obtain a verdict. The claimant's title was thus indirectly determined; and, although the writ of possession must of course have been issued in the plaintiff's name, and not in his own, yet as the plaintiff had prosecuted the suit only as the lessor's friend, he would immediately give up to him the possession of the lands.

In the infancy of the experiment, this mode of prooceeding could be attended with no ill consequences. As the party previously in possession, must, in contemplation of the law, be upon the lands, and certainly animo possidendi, the friend of the claimant was allowed to consider him as an ejector, and make him the defendant in the action. When, however, the remedy became more generally used, this simple method was found to be productive of considerable evil. It was easy for the claimant to conceal the proceedings froin the person in possession, and to procure a second friend to enter upon the lands, and eject his lessee immediately after the execution and delivery of the lease. The lessee would then commence his suit against this ejector, and the party in possession might consequently be ousted of his lands, without any opportunity of defending his title. To check this evil, a rule of court was made, forbidding a plaintiff in ejectment to proceed against such third person, without giving a previous notice of the proceedings to the party in possession; and it was the practice for such party, on the receipt of this notice, if he had any title to the lands, to apply to the court for permission to defend the action; which application was uniformly granted, upon his undertaking to indemnify the defendant (the third person) from the expenses of the suit. The *action, however, [* 12] proceeded in the name of such defendant, though the person

in possession was permitted at the trial to give evidence of his own title.

It is declared unnecessary, by the "Revised Statutes" of New-York, Part 3, Chap. 5, Tit. 1, § 25 (Vol. 2. p. 306.)

"§ 25. It shall not be necessary for the plaintiff to prove an actual en"try under title, nor the actual receipt of any profits of the premises de"manded; but it shall be sufficient for him to show a right to the posses"sion of such premises, at the time of the commencement of the suit, as "heir, devisee, purchaser or otherwise."