to every person whose title is connected to, and consistent with, the possession of the occupier, and divested or disturbed by any claim adverse to such possession, as in the case of remain- [ *230 ] ders or reversions, expectant upon particular estates; secondly, whether it does not extend, as between two persons claiming to be landlords du jure, in right of representation to a landlord de facto, so as to prevent either from recovering by collusion with the occupier, without a fair trial with the other. Where a person claims in opposition to the title of the tenant in possession, (v) he can in no light be considered as a landlord; and it would be unjust to the tenant, to make him a co-defendant their defences might clash. [1] Whereas, when there is a privity between them, their defence must be upon the same bottom, and letting in the person behind, can only operate to prevent treachery and collusion.[2] It is no answer, "that any person affected by the judgment may bring a new ejectment;" because there is a great difference between being plaintiff, or defendant, in ejectment.(w) (v) Driver, d. Oxendon, v. Lawrence, W. Blk. 1259. (w) Fairclaim, d. Fowler, v. Shamtille, Burr. 1290. 1294. The principles laid down by Lord Kenyon, C. J., in the case of Lovelock, d. Norris, v. Dancuster, (3 T. R. 783,) seem to support the doctrine of Lord Mans field, above mentioned; although, from the omission, in the report of the case, of the facts upon which Lord Kenyon's judgment was founded, the point cannot be clearly ascertained. It was moved, that the cestui que trust might be made defendant in ejectment instead [1] A person claiming to be let in to defend in Ejectment, must show that his title is connected to and consistent with the possession of the occupant. Troublesome ex dem. Dougherty vs. Estill, 1 Bibb's Rep. 128. In Ejectment, a landlord proving that the tenant entered on the land under him, will be permitted to defend the action, although it appears that the tenant has been found guilty of a forcible detainer against the landlord. M'Clelland vs. Doe ex dem. Sprigg, 3 Bibb's Rep. 266. One claiming in opposition to the title of the tenant, is not entitled to be admitted defendant in Ejectment with the tenant. Jackson ex dem. Walker vs. Flint 2 Cowen's Rep. 594. Nor, Semb. is be entitled to be admitted a co defendant with the landlord of the tenant, though he claim as tenant in common with such landlord, who is willing and requesting to have him joined as defendant. Ibid. [2] The tenants in possession are the proper, if not the natural defendants to an Ejectment; although the landlord has a right to be made a defendant, to prevent his being injured by a combination between the lessor of the plaintiff and his tenant; but, he may waive his right, or having asserted it, may relinquish it by consent of the lessor of the plaintiff. Herbert vs. Alexander, 2 Call's Rep. 498. [ *231 ] *The judgment in this case was not, indeed, ultimately given upon these points; but the principle upon which the statute is to be interpreted, seems to have been established by it; and we may now consider, that the word landlord is extended to all persons claiming title, consistent with the possession of the occupier;[1] and of the tenant, and objected to on the opposite side, because he had never been in possession, and could not be considered as a landlord under the statute 11 Geo. II. c. 19. s 13 Lord Kenyon, C. J., "If the person requiring to be made a defendant under the act had stood in the situation of imn.ediate heir to the person last seised, or had been in the relation of remainderman, under the same title as the original landlord, I am of opinion that he might have been permitted to defend as a landlord, by virtue of the directions of the statute; but here the very question in dispute between the adverse party and himself is, whether he is entitled to be landlord or not; and, therefore, we are not authorised to extend the provision of the statute to such a case as this." The rule was discharged. [1] Every person may be considered as a landlord, for the purpose of being admitted to defend in Ejectment, "whose title is connected to, and consistent with the possession of the occupier." Stiles ads. Jackson ex dem. Ten Eyck, 1 Wend. Rep. 316. A person may be admitted to defend as landlord, between whom and the defendant a privity of intercst exists, although he do not receive rents, which is not the true test. Wisner & Al. vs. Wilcocks & Al. 1 Coleman's Cas. 56. So, the Assignee of a mortgagee may be let in to defend. Jackson ex dem. Clark vs. Babcock, 17 Johns. Rep. 112. When the landlord unites with the tenant in defending the suit in Ejectment, it is sufficient to prove the tenant to have been in possession at the commencent of the suit, and his possession is deemed to be the possession of the landlord. Jackson ex dem. Wood vs. Harrow, 11 Johns. Rep. 434. A copy of the rule of court, certified by the clerk, is sufficient evidence that the landlord was admitted to defend. Jackson ex dem. Wood vs. Harrow, 11 Johns. Rep. 436. The admission of a party claiming right to defend in Ejectment as landlord, under the ninth section of the act of the 21st March, 1772, [Pennsylvania,] is an act of the court, whose duty it is to enquire before making the order, whether the applicant really stands in the relation of landlord, or whether his claim of title is consistent with the possession of the occu pier. M'Clay vs. Benedict, 1 Rawle's Rep. 424. Where the lessor of the plaintiff claims to recover no more than the interest of the tenant in the premises, subject to the rights of the landlord ; or claims nothing inconsistent with the rights of the landlord," the landlord will not be let in, for he has no interest to defend." Stiles ads. Jackson ex dem. Wood, 1 Wend. Rep 103. But, "when the lessor in Ejectment claims an interest inconsistent with "the title of the landlord, the latter may defend." Stiles ads. Jackson ex dem. Ten Eyck, 1 Wend. Rep. 317. Persons cannot be admitted defendants after their agent whom they permitted to defend for them, has been admitted and confessed a judgment. Bonta vs. Clay, 5 Litt. Rep. 129. that it is not necessary they should previously have exercised any act of ownership over the lands. Thus, the courts have permitted an heir, who had never been in possession, to defend an ejectment, where the father, under whom he claimed, had died just before, having previously obtained the same rule. (a) So a devisee in trust, not having been in possession, was permitted to defend an ejectment, (y) and a mortgagee has been made defendant with the mortgagor.(z) If a party should be admitted to defend as landlord, whose *ti- [ *232 ] tle is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at chambers, and have the rule discharged with costs. (a) If, however, he neglect to do so, and the party continue upon the record as defendant, such party will not be allowed to set up such inconsistent title as a defence at the trial.(b) The Court of King's Bench, in a case which has already been frequently cited, exercised a singular species of equitable jurisdiction, with respect to the admission of a person claiming title to defend an ejectment. The action was brought by one, claiming as the heir of a copyholder; and the lord of the manor, claiming by escheat pro defectu hæridis, obtained a rule to show cause why he should not be admitted defendant. After considerable argument as to the legality of the lord's claim to defend, it was agreed by both parties, at the recommendation of the court, that the then ejectment should be discontinued, and a fresh one brought in the lord's name, in which the heir should be admitted defendant; and Lord Mansfield, C. J., declared afterwards, that if the heir had refused to consent to this arrangement, they would have admitted the lord to defend, and that if the lord had refused his consent, they would have discharged the rule. (c) A wife has been permitted to defend an ejectinent, where the title of the plaintiff's lessor arose from a pretended intermarriage with her, which marriage she disputed. (d) (x) Doe, d. Heblethwaite, v. Roe, cited 3 T. R. 783. (y) Lovelock, d. Norris, v. Dancaster, 4 T. R. 122. (z) Doe, d. Tilyard, v Cooper, 8 T. R. 645. It does not appear, from the report of this case, whether the mortgagee had previously received any rent; but, from the prin ciples above, laid down, the circumstances (c) Fairclaim d. Fowler, v. Shamtitle, Burr. 1290. (d) Fenwick v. Gravenor, 7 Mod., 71. [*233] *But a parson claiming a right to enter, and perform divine service, has been held not to have a sufficient title to be admitted defendant; (e) and, where the application for admission appeared only a device to put off the trial, the Court refused to grant a rule.(ƒ) It may be useful to observe, that it is not necessary for the landlord to be made defendant, in order to make his title admissible in evidence; but that he may, with the tenant's consent, defend the ejectment in the tenant's name. And where a suit was so defended, and the lessor of the plaintiff, having knowledge thereof, obtained from the tenants a retraxit of the plea, and a cognovit of the action, the Court directed the judgment to be set aside.(g) Thus far as to who may appear we how must now consider the appearance should be made, and herein first of the Consent Rule. [1] The form(h) and purposes of the consent rule have already been cursorily mentioned;(i) but they must now be spoken of more fully. It is in substance as follows: First, The person appearing consents to be made defendant instead of the casual ejector. Secondly, To appear at the suit of the plaintiff; and, if the proceedings are by bill, to file com-` mon bail. Thirdly, To receive a declaration in ejectment,(j) and plead not guilty. Fourthly, At the trial of the issue to confess [ *234 ] lease,[2] entry, and ouster, and insist upon title only. Fifth (e) Martin v Davis, Stran. 914. Vid. cont. Hillingsworth v. Brewster, Salk. 256 (f) Fenwick's case, Salk. 257. (g) Doe, d. Locke, v. Franklin, 7 Taunt. 9. (h) Appendix No. 25. (i) Ante, 13. (j) The declaration, served upon the tenant to bring him into court, is the only declaration now delivered. [1] The "Revised Statutes" of New-York, Part 3, Chap. 5, Tit. 1, (Vol. 2, p. 306,) contain the following section: "24. The consent rule, heretofore used, is hereby abolished." A consent rule in Ejectment for admitting the landlord to defend, need not set out the Christian and surname of the lessor of the plaintiff. Doe dem. Spencer & Al. vs. Read & Al., 3 Moore's Rep. 96. An agreement to confess lease, entry, and ouster of all the lands described in the defendant's title papers," is not sufficient to authorize the admission of the defendant in Ejectment. Carter's Lessee vs. Parrot, 1 Tenn. Rep. 65. [2] Confession of a lease, entry, or ouster in Ejectment, extends to an entry to complete the title to the action, but not to an entry which is re ly, That if at the trial the party appearing shall not confess lease, entry, and ouster, whereby the plaintiff shall not be able to prosecute his suit, such party shall pay to the plaintiff the costs of the non pros, and suffer judgment to be entered against the casual ejector. Sixthly, That if a verdict shall be given for the defendant, or the plaintiff shall not prosecute his suit for any other cause than the non-confession of lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant. Seventhly, When the landlord appears alone, that the plaintiff shall be at liberty to sign judgment immediately against the casual ejector, but that execution be stayed until the Court shall further order.(k) A trifling variation, with respect to the manner of describing the premises, exists in form between the consent rule of the Court of King's Bench, and of the Court of Common Pleas. The defendant, in the former court, consenting to confess lease, entry, and ouster, generally of all the premises mentioned in the declaration; but in the latter, of so much of them only as are in his own, or his under-tenant's possession.[1] The consent rules are, however, now considered as essentially the same in both courts; and it is in all cases necessary for the plaintiff's lessor to give evidence at the trial, of the possession of the defendant, or his under (k) Sel. N. P 644. quisite to regain and revest the possession. Holt's Lessee vs. Smith, 1 Harr. & M'Hen. Rep. 273. Where two defendants are sued jointly in Ejectment, they have no right to enter into separate consent rules in the name of each alone. Jackson ex dem. Smith vs. Stiles, 3 Cowen's Rep 356. In Ejectment, when the defendant has taken general defence, and enter ed into the common rule, he cannot confess lease, entry and ouster, for a part only of the tenements laid in the declaration, but must confess for the whole. Wilson's Lessee vs. Campbell, 1 Dall. Rep. 126. [1] The defendant entered into a special consent rule, describing particularly the premises for which he intended to defend, leaving a residue of the farm, for the recovery whereof the suit was brought, as to which neither the defendant nor any other person appeared to defend. The plaintiff on entering the rule to appear, &c. had filed the usual affidavit of service of Narr., &c. on the defendant, describing him as tenant in possession of the premises, or of some part thereof. Held,, that the plaintiff might proceed and perfect judgment against the casual ejector, and take possession of the residue not described in the special consent rule. Underwood ads. Jackson ex dem. Varick, 1 Wend. Rep. 95. SAME POINT, Langendyck & Ur. vs. Burhans, 11 Johns. Rep, 462. |