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CHAPTER X.

OF THE EVIDENCE IN THE ACTION OF EJECTMENT.

THE facts necessary to be established by a claimant in ejectment, when his title to the premises is controverted, are as follows. [1] First,

[1] Parol declarations are inadmissible to prove or disprove title, or a disclaimer of title to lands. Jackson ex dem. Williams & Al. vs. Miller, 6

Cowen's Rep. 751.

"Acknowledgments of the party, as to title to real property, are generally a dangerous species of evidence; and though good to support a "tenancy, or to satisfy doubts in cases of possession, they ought not to be "received as evidence of title." Jackson ex dem. Burr & Al. vs. Sherman, 6 Johns. Rep. 21.

Parol evidence of a disclaimer of title to real property is inadmissible. Jackson ex dem. Van Alen & Al. vs. Vosburgh, 7 Johns. Rep. 186. Jackson ex dem. Livingston vs. Kisselbrach, 10 Johns. Rep. 336, 338. Brandt ex dem. Cuyler & Al. vs. Livermore, lbid. 358. Jackson ex dem. White vs. Cary, 16 Johns. Rep. 302. Jockson ex dem. Van Schaick & Al. vs. Davis, 5 Cowen's Rep. 133.

In Ejectment by a landlord against his tenant, the latter cannot show in his defence, that the landlord has acknowledged, by parol, that the title is in another. Jackson ex dem. Van Schaick & Al. vs. Davis, 5 Cowen's Rep. 124.

But if the tenant have actually purchased of, or attorned to another, with his landlord's consent or encouragement, this throws the burthen of proving title upon the landlord, the same, as if the action had been against a stranger holding adversely, Ibid.

In Ejectment the lessor of the plaintiff shall not be obliged to show his title further back than from the person last seised, first showing the estate to be out of the Commonwealth. Said by M'KEAN, Ch. J. to have been ruled by him at Lancaster. Shirder's Lessee vs. Nargan, 1 Dall. Rep. 68.

"A man sued in Ejectment may defend the suit, and nevertheless agree "to purchase the title of the plaintiff, in case the plaintiff should prove "successful." Wilcox vs. Calloway, 1 Wash. Rep. 38.

In an action of Ejectment, evidence cannot be introduced to prove that a patent was irregularly obtained. Witherington vs. M'Donald, 1 Hen. & Munf. Rep. 303.

he must prove that he had the legal estate in the disputed lands at the

Quere. Whether in such case, evidence is admissible that a patent was obtained by fraud? Ibid.

Where the plaintiff had read in evidence a deed from one under whom he claimed, reciting that possession of the land in dispute had been delivered to A., according to a contract, it was Held, that to rebut the presumption of an outstanding title in A. he might show that A. admitted he had sold to another who had sold to the plaintiff. Lessee of Packer vs. Gonsalus, 1 Serg. & R. Rep. 526.

In Ejectment the plaintiff may give in evidence that certain deeds necessary to make out his title, are in the hands of and detained by a third person, under whom the defendant claims as lessee. Morris' Lessee vs. Vanderen, 1 Dall. Rep. 65.

A decree of the court of a county, requiring a defendant residing within its limits, to execute a conveyance for lands lying in another county, can be enforced upon the person only of such defendant, and does not of itself vest any legal title in the complainant. If offered as evidence of such title in an action of Ejectment, it ought not to be received. Aldridge & Al. vs. Giles & Al., 3 Hen. & Munf. Rep. 136.

Where the lessor of the plaintiff is a fictitious person, instead of the lessee, evidence on the part of the plaintiff not going to shew a title in the lessor, ought to be excluded. Butts vs. Blunt & Al., 1 Rand. Rep. 255. A lease for a year to A. and his wife, will support a release to A. and a third person. Doe ex dem. Saunders vs. Cooper, 1 Holt's Rep. 461.

A deed of conveyance under which the lessor of the plaintiff claims title in ejectment is proved to have been altered in a material part since the execution; it seems that the deed is still admissible in evidence. Doe ex dem. Beanland & Al. vs. Hirst, 3 Starkie's Rep. 60.

In ejectment for lands sold by a constable under the act of 30th December, 1777, [Pennsylvania] for not serving a tour of duty in the militia, the vendee must show the warrant of the Lieutenant to the constable, and all the other steps preliminary to the sale, as required by law. Goodright Lessee, &c. vs. Probst, 1 Yeates' Rep. 300.

In ejectment the plaintiff may give evidence to show that he articled to sell the land to a third person, and afterwards recovered it from him in ejectment for the purpose of showing a former possession in himself. Vanhorn vs. Frick, 3 Serg & R. Rep. 278.

A warrant was taken out and paid for by a father in the name of his sons and on ejectment brought, the question being whether the warrant was designed by the father as an advancement to his sons, or whether a trust resulted to him; it was decided that evidence might be given of acts of ownership on the land by the father, and of declarations to explain those acts, in order to rebut the presumption that the land was intended as an advancement. Sampson vs. Sampson, 4 Serg. & R. Rep. 329.

A surveyor's original book of surveys and his parol testimony, admitted by the general court, in an action of ejectment, as competent evidence to prove that a certificate of survey returned to the land office was forged. Borcings' Lessee vs. Singery, 2 Har. & Johns. Rep. 455.

time of the demise laid in the declaration; secondly, that such legal estate was accompanied by a right of entry ;[2] and, thirdly, that the defendant, or those claiming under him, were in possession of the premises at the time when the declaration in ejectment was delivered. [3] When, indeed, there is a privity between the parties, as if the

A deed of bargain and sale by a bargainor, not having actual possession of the land, nor that statutory possession, which he might acquire as bargainee from some other person having actual possession, conveys no title under which his bargainee can recover in ejectment. Tabb vs. Baird, 3 Call's Rep. 480.

A deed of bargain and sale and release of land, from a person not in possession to another in the same predicament, (the land being at the time, held by a third person with adverse title,) passes nothing; and, therefore, does not divest the bargainor of his right to recover in ejectment. Hopkins & Al. vs. Ward & Al., 6 Munf. Rep. 38.

If a person out of possession of land held adversely, convey the same to another, the title still continues in the grantor and he may maintain ejectment. Williams vs. Jackson ex dem. Tibbits & Al., (IN ERROR) 5 Johns. Rep. 489. Jackson ex dem. Youngs & Al. vs. Vredenburgh, 1 Johns. Rep. 159.

And where, in an action of ejectment, several demises were laid, one from the grantor, and another from the grantee of such a deed, it was Held, that the plaintiff might recover, though he could not on the demise of the grantee only. Williams vs. Jackson ex dem. Tibbits, (IN ERROR) 5 Johns. Rep. 489.

[2] The "Revised Statutes" Part 3, Chap. 5, Tit. 1, § 3, (Vol. 2, pp. 303, 304,) contain the following section:

46

"§ 3. No person can recover in ejectment, unless he 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 there"of, or of some share, interest or portion thereof, to be proved and estab"lished at the trial."

[3] Vide ANTE Page 234, n. [2]

The plaintiff is entitled to recover in Ejectment, although it appear that the defendant, who is in possession, is the mere servant of another, by whose permission he entered into possession. Doe dem. Cuff vs. Stradling, 2 Starkie's Rep. 187.

In an action of Ejectment to which the general issue is pleaded, it must appear that the defendant dispossessed the plaintiff, or was in the actual possession of the land. Cooper vs. Smith, 9 Serg. & R. Rep. 26.

The return of the sheriff under the act of assembly of April the 13th, 1807, [Pennsylvania] is only prima facie evidence of the possession of any defendant, whether his name be in the writ of Ejectment, or be added by the sheriff; and such defendant may rebut it by showing that he was not in possession. Ibid.

The return of "served" by the sheriff on a writ of Ejectment, is prima

relationship of landlord and tenant has subsisted between them, proof of title will be unnecessary ;[4] for a party will not be allowed to

facie evidence of possession by the defendants, whether they be originally named in the writ or added by the sheriff Dietrick vs Mateer, 10 Serg. & R. Rep. 151.

A plaintiff in Ejectment cannot succeed, unless he prove the defendant to be in possession. Pope vs. Pendergrast, 1 Marsh. Rep. (Ky.) 122. Land not included in the lines described in the declaration, cannot be ecovered in Ejectment. Troxler vs. Gibson, 1 Hayw. Rep. 465.

Merely moving hay scales on the ground of another, and never afterrwards interfering with them, does not amount to a possession in the party removing, so as to subject him to an action of Ejectment. Jackson ex dem. Garnsey vs. Pike, 9 Cowen's Rep. 69.

[4] When the relation of landlord and tenant is once established, it attaches to all who may succeed to the possession, through or under the tenant, immediately or remotely. And the succeeding tenant is as much affected by the acts and acknowledgments of his predecessor, as though they were his own. Jackson ex dem Van Schaick & Al. vs. Davis, 5 Cowen's Rep. 123. Jackson ex dem. Webber & Al. vs. Harsen. 7 Cowen's Rep.

323.

An acknowledgment by a person, under whom the defendant in Ejectment claims to hold the land, that he went into possession under the lessors of the plaintiff, is conclusive against the defendant, as to the tenancy.Jackson ex dem. Vandeusen & Ål. vs. Scissam, 3 Johns. Rep. 499.

Though one purchase and take of a lessee, and in fact enter upon the premises under an absolute conveyance in fee, yet, in judgment of law, he enters as tenant to the lessor. Jackson ex dem. Van Schaick & Al. vs. Davis, 5 Cowen's Rep. 123.

But this rule means the conventional relation of landlord and tenant, where some rent or return is in fact reserved to the former; not a relation arising from mere operation of law; as where one makes a grant, and by the omission of the technical word heirs, an estate for life, only, passes. In such case, after the death of the tenant for life, an adverse possession may commence running, in favour of those who enter and claim in fee under the grantee, which, after twenty-five years, will bar all claim of the reversioner and his heirs. Jackson ex dem. Webber & Al. vs. Harsen & Al. 7 Cowen's Rep. 323.

If the defendant have recognised the lessor as his landlord, he cannot, afterwards, dispute his title. Jackson ex dem. Low & Al. vs. Reynolds, 1 Caines' Rep. 444. Jackson ex dem. Bleecker vs. Whitford, 2 Caines' Rep. 215. Jackson ex dem. Van Alen & Al. vs. Vosburgh, 7 Johns. Rep. 186.

An agreement, by a person in possession of land to abandon the premises at a certain day, is not a lease, and does not estop him from controverting the title of the person with whom the agreement was made. Miller vs. M'Brier, 14 Serg. & R. Rep. 382.

R. C. and others, being tenants in common of certain lands, and R. C. having sold a part thereof to E. W. and others. a decre for partition obtained by the other tenants against R. C. in a suit commenced subsequently

dispute the original right of him by whom he has been admitted into

to the sale, is not evidence in their favour in an action of Ejectment brought by them against the vendees, who were no parties to the suit for partition. Carter's Trustees vs. Washington & Al. 2 Hen. & Munf. Rep. 345.

Evidence of an agreement for a lease, between the lessor in Ejectment and the tenant, is not sufficient to enable the plaintiff to recover the possession, when there is no proof that any lease was ever executed, or rent paid, and the tenant claims to hold adversely. Jackson ex dem. Southhampton & Ux. & Al. vs. Cooley 2 Johns. Cas. 223.

He will not be permitted to show, that the land leased to him is without the bounds of the lessor's premises. Jackson ex dem. Bleecker vs. Whit. ford, 2 Caines' Rep. 215. SAME POINT, Brandt ex dem. Cuyler vs. Livermore, 10 Johns. Rep. 358.

A tenant who had been in possession under an adverse title, made application to the lessor of the plaintiff to purchase the land, and requested to be considered as his tenant: Held, that although this precluded the tenant from taking advantage of the Statute of Limitations, yet he might show that the application was founded in mistake, or that the fee existed in himself, or out of the lessor, but he cannot set up want of notice to quit as a defence. Jackson ex dem. Viele & Al. vs. Cuerden, 2 Johns. Cas. 353.

If the defendant, having originally entered under a title from A., afterwards take a release from B., he cannot, in an action of Ejectment against him by a person claiming under A., deny the title of A., and set up B.'s title as an older and better one. Jackson ex dem. Bowne vs. Hinman, 10 Johns. Rep. 292.

As between the landlord and tenant, the title of the former to the property leased, is not to be called in question. William's Ex'ors. vs. The Mayor, &c of Annapolis, 6 Harr. & Johns. Rep. 533.

A lease, unfairly obtained from a party in possession of the land, will not prevent the Lessee from contesting the title of the lessor. Brown vs. Dysinger & Al, 1 Rawle's Rep. 408.

The defendants in ejectment cannot give in evidence a record of a suit against a third person, on which the land was sold, to one under whom he claims, unless some colour of title be first shown in the person as whose property the land was sold. Kennedy vs. Bogart & Al., 7 Serg. & R. Rep.

97.

Where a complainant derives title under a deed conveying the whole. tract patented, except parcels thereof, before conveyed to persons named, it is incumbent on him where the defendant claims adverseley to the patent, to show that the land in contest is not embraced in the exceptions. Guthrie vs. Lewis' Devisees, 1 Monroe's Rep. 143.

Otherwise, where the defendant claims to hold under the same grantor, more especially if he claims an excepted parcel. Ibid. 143, 144.

A tenant holding over after a lease expired, cannot controvert his landlords title. Jackson ex dem. Wills & Al. vs. Stiles, 1 Cowen's Rep. 575. Nor if he take a lease from a third person, on being ejected, will that third person be allowed to defend as landlord. Ibid.

The latter claiming under the tenant has no greater right to a defence than the tenant would be entitled to. Ibid.