not merely an equitable title; depending upon the strength of his own, and not upon the weakness of that of his adversary. This rule, however, will not avail a defendant who has fraudulently induced a plaintiff to purchase a bad title; nor can a defendant require of the plaintiff a better title than a naked possession when he has wrongfully put him out of possession." If he can, the defendant must show a better title in order to support his action."

The title to be established, when no privity exists between the parties, relates to the rights of the heir at law, a devisee, or a personal representative or guardian.

3669. When the plaintiff claims title as heir at law, he must prove that the ancestor from whom he derives his title was the person last seised of the actual freehold and inheritance; that is, that had last actual possession of the lands in fee simple, and that he, the claimant, is his heir.

The seisin may be proved, in the first instance, by showing that the ancestor was either in the actual possession of the premises at the time of his death, or in the receipt of the rent from the tenant; for possession is presumptive evidence of a seisin in fee, until the contrary has been proved.". This presump tion may, of course, be rebutted, and, for this reason, the plaintiff should prepared with other evidence of his ancestor's title.

When the plaintiff claims as lineal heir, he is required to produce this proof; when he claims as collateral heir, he must prove the descent to himself, and the person last seised, from some common ancestor, together with the extinction of all those lines of descent which would claim before him and defeat his right. He must, therefore, prove all the marriages, births, and deaths necessary to complete his title and the identity of the persons. This is done by the usual mode of proving pedigrees.

45

3670. When the plaintiff claims as devisee of a freehold, he must prove the seisin and death of the devisor, and that his will, devising him the estate, has been properly executed according to the requirement of the law. The proof is to be made by the production of the attesting witnesses, when it has been attested by them, if they can be procured; if not, by proving their hand writing; when it has not been attested, it must be proved as other writing. But in case of a will thirty years old, it may be read without further proof on account of the difficulty of proving it, as the witnesses may all be dead; and the age of the will in these cases is to be reckoned from the date of the will, and not from the death of the testator.46

The seisin of the testator may be proved as the seisin of an ancestor.

When the lessor of the plaintiff, or the plaintiff where the fictions in ejectment have been abolished, claims as legatee of a term of years, he must give in evidence the probate of the will, and also prove the assent of the executor to the legacy, for this is essential to his title. This assent may be proved by the express agreement of the executor or implied from his acts; as, where he permits the legatee to receive the rents and apply them to his own use, and once given, this assent cannot be revoked." The plaintiff must also prove the title

41 Lane v. Reynard, 2 Serg. & R. Penn. 65.

42 Woods v. Lane, 2 Serg. & R. Penn. 53; Jackson v. Harder, 4 Johns. N. Y. 202; Jackson v. Hazen, 2 Johns. N. Y. 22; Law v. Wilson, 2 Root, Conn. 102; Campbell v. Roberts, 3 A. K. Marsh. Ky. 623; Ludlow v. Barr, 3 Ohio, 388.

43 Woods v. Lane, 2 Serg. & R. Penn. 53.

"Smith v. Lorillard, 10 Johns. N. Y. 338; Doe v. Butler, 3 Wend. N. Y. 149; Jackson v. McCall, 10 Johns. N. Y. 377: Buller, Nisi P. 103.

45 Adams, Ej. 254; 2 Greenleaf, Ev. 22 309, 311.

46 Adams, Ej. 259; 2 Greenleaf, Ev. 310; Jackson v. Blasham, 3 Johns. N. Y. 292; Jackson v. Christman, 4 Wend. N. Y. 277; Doe v. Walley, 3 Barnew. & C. 22; McKenire v. Fraser, 9 Ves. Ch. 5.

47 Adams, Ej. 271; 1 Roper, Leg. 250; 2 Greenleaf, Ev. ? 314.

of his testator, and show that he had a chattel and not a freehold in the premises; for when a party dies in possession, he is presumed to be seised of the fee until the contrary be shown. The production of the lease in a case of this kind is the most satisfactory, but it may be proved by any solemn admission of the defendant.48

3671. When an ejectment is brought by a personal representative to recover a chattel real, he must prove the probate of the will, or the grant of letters of administration, or the book of the proper office where they are entered. In addition, he must prove the testator or intestate's title.

3672. When the plaintiff claims as guardian, he is required to prove not only the title of the ward and his minority at the time of the demise laid in the declaration, but also the appointment by virtue of which he claims, the deed or will, when he acts under these instruments, or the letters or certificate of a competent tribunal appointing him guardian.49

3673. The plaintiff is bound to prove the identity of the lands and the possession of them by the defendant; 50 this can be done without difficulty when a privity exists between the parties by proof of the payment of rent, or by the acknowledgment of the defendant that he is tenant, or by any other competent evidence of the fact, for this is a mere fact, provable, like any other, by parol evidence. When there is no privity, the general mode of proof is by reading the deeds or wills under which the lessor or plaintiff claims, and showing that the names and abutments of lands in the defendant's possession agree with the premises described in these instruments. The oral declarations of the defendant may also be given in evidence to prove his possession; and the fact that he was in possession at the time of commencing the suit raises a presumption that he held in hostility to the plaintiff.52 The question of possession is wholly one of fact for the jury.53

51

3674. The principle already stated, that the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary, is so firmly established that but little can be said about the evidence required to be produced by the defendant. The lessor of the plaintiff or the plaintiff himself must establish a clear and substantial possessory title to the premises in question. The defendant's evidence is altogether confined to falsifying, contradicting, or explaining his adversary's proofs or rebutting the presumption which may arise out of them. It entirely depends on the nature of the proofs advanced by his adversary, and need not extend beyond the rebuttal of them.

Thus, when the lessor or plaintiff claims as heir, the defendant may show a devise by the ancestor to a stranger, or that the claimant is a bastard, or any other circumstance which will invalidate his title. When the claimant claims as devisee the defendant may prove that the will was obtained by fraud, or not duly executed, or that the testator was a lunatic, or any other fact which will destroy the validity of the supposed will. And on whatever right the claimant may rest his case the defendant may establish facts and circumstances, if he can, to destroy the apparent right of the claimant.

As we have before stated, the action must be decided by the legal title, and accordingly an equitable title cannot be shown in defence. But the laws of

48 Doe v. Steel, 3 Campb. 115.

49 Adams, Ej. 274; 2 Greenleaf, Ev. 315; 2 Phillipps, Ev. 303.

54

50 Albertson v. Reding, 2 Murph. No. C. 283; see Den v. Snowhill, 1 Green, N. J. 23; Pickett v. Doe. 13 Miss. 470; Mordicai v. Oliver, 3 Hawks, No. C. 479.

61 Banyer v. Empire, 5 Hill, N. Y. 48; Mordicai v. Oliver, 3 Hawks, No. C. 479.

52 Sharp v. Ingraham, 4 Hill, N. Y. 116.

53 Gage v. Smith, 27 Conn. 70.

54 Stewart v. Hoag, 12 Ohio, 623; Abbott v. Chase, 13 Iowa, 453.

some of the states have altered this rule, and in them an equitable title in the tenant is sufficient to defeat the demandant's claim.55

56

3675. The defendant may also prove that however regular the paper title of the lessor or plaintiff may be, he has a superior title, which has been gained by adverse possession for the space of twenty years; that is, the enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion of right on the part of the possessor." 57

58

When the possession has been adverse for twenty years, of which the jury are to judge from the circumstances, the law raises a presumption of a grant." But this presumption arises only when the use or occupation would have been unlawful.59

This adverse possession may be either actual or constructive. It is actual when the defendant has himself been in the enjoyment of the land; it is constructive where a deed, or some other writing, sufficient in form to carry the title to the lands, where in fact a title exists, is set up to bar a recovery in an action of ejectment; and privity of contract, blood, or estate, must exist between the consecutive possessors of land to establish a continuity of constructive adverse possession.60

3676. The principal requisite of a verdict in ejectment, when for the complainant, is that it find the facts laid in the declaration with certainty; for when the jury find an uncertain thing, the court cannot render a judgment, and if a judgment were rendered, it could not be executed; as, a verdict for one hundred and fifty acres," without designating the part found, is void for uncertainty.61

55 Bartlett v. Judd, 21 N. Y. 200; Meador v. Parsons, 19 Cal. 294; McClane v. White, 5 Minn. 178.

56 In Pennsylvania twenty-one years are required. Hawk v. Senseman, 6 Serg. & R. Penn. 21. In most of the states statutes have been passed regulating the time when an adverse possession will give title; some requiring more, and others less than twenty years. 57 Waggoner v. Hastings, 5 Penn. St. 300; Overfield v. Christie, 7 Serg. & R. Penn. 177; Moore v. Small, 9 Penn. St. 196.

58 Angell, Wat. Courses, 85 et seq.

59 The following rules, by which it may be ascertained that a possession is not adverse, are taken from Bouvier, Law Dict. Adverse Possession:

When both parties claim under the same title; as, if a man seised of certain land in fee have issue two sons and die seised, and one of the sons enter by abatement into the land, the statute of limitations will not operate against the other son; for when the abator entered into the land of his father, before entry made by his brother, the law intends that he entered claiming as heir to his father, by which title the other son also claims. Coke, Litt.

s. 396.

When the possession of the one party is consistent with the title of the other; as, where the rents of a trust estate were received by a cestui que trust for more than twenty years after the creation of the trust, without any interference of the trustee, such possession being consistent with and secured to the cestui que trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee. 8 East, 248.

When, in contemplation of law, the claimant has never been out of possession; as, where Paul devised lands to John and his heirs, and died, and John died, and afterward the heirs of John and a stranger entered, and took the profits for twenty years; upon ejectment brought by the devisee of the heir of John against the stranger, it was held that the perception of the rents and profits by the stranger was not adverse to the devisee's title; for when two men are in possession, the law adjudges it to be the possession of him who has the right. Ld. Raym. 329.

When the occupier has acknowledged the claimant's titles; as, if a lease be granted for a term, and, after paying the rent for the land during such term, the tenant hold for twenty years without paying rent, his possession will not be adverse. See Roe v. Ferrars, 2 Bos. & P. 542; 8 Barnew. & C. 717.

60 Simpson v. Downing, 23 Wend. N. Y. 316.

61 Stewart v. Speer, 5 Watts, Penn. 79; see Burdick v. Norris, 2 Watts, Penn. 28; Stewart

62

The verdict may be for less, but never for more, than the land claimed in the declaration. But if the jury should find a verdict for too much, the plaintiff may enter a remittitur to avoid a new trial.63

When the verdict is for the defendant, a new trial is seldom granted, because all the parties then remain in the situation they were previously to the commencement of the action, and, therefore, the claimant may bring a new ejectment, without being subject to additional difficulties. But this is not the case when the verdict is against the defendant, because the possession then is changed. The defendant in the first ejectment becomes the plaintiff's lessor in the second, and is obliged to give evidence of his own title, instead of merely rebutting the claim set up by his opponent; and as this is a point of material consequence to him, "the courts rather lean to new trials on behalf of defendants in ejectments, especially on the footing of surprise."64

3677. The party who has obtained a verdict is of course entitled to the judgment of the court, unless for some legal cause it has been set aside. By the judgment, when in his favor, the lessor of the plaintiff, or the plaintiff himself, where the fiction in this action has been abolished, obtains possession of the lands recovered by the verdict, but he does not acquire any other title to them than he had before. When, therefore, he has a freehold interest in them, he is in as a freeholder; when he has a chattel interest, he is in as a termor; and when he has no title at all, he is in as a trespasser, and liable to account to the legal owner, without any re-entry on his part. The verdict, or the judgment, is no evidence in a subsequent action, even between the same parties.

Although the claimant has but a mere possession given to him by the judgment, yet he becomes seised according to his title, if he have more than a chattel interest in the land. This is the effect of a fiction. It is a rule of law that when a man having title to an estate comes into possession of it by lawful means, he shall be in possession according to his title; now, when possession is given to him by the sheriff, the possession and the title are said to unite, and the lessor of the plaintiff holds the lands in this case, as in every other where he obtains peaceable possession, according to the nature of his interest in them.68

The judgment being grounded on the verdict, it ought not to be entered for more land or for different parcels than the defendant was found guilty of by the verdict, though a misprision or mistake, in this respect, made by the clerk, which causes a variance, is not fatal, but may be amended by the court.70

69

v. Martin, 2 Watts, Penn. 200; Gregory v. Jacksons, 6 Munf. Va. 25; O'Keson v. Silverthorn, 7 Watts & S. Penn. 246; Harrisburg v. Crangle, 3 Watts & S. Penn. 460; Clay v. White, 1 Munf. Va. 162; Munger v. Grinnell, 9 Mich. 544; Hunt v. McFarland, 38 Penn. St. 69.

62 Scott v. Bealle, 1 A. K. Marsh. Ky. 69; Van Alstyne v. Spraker, 13 Wend. N. Y. 578; Harrison v. Stevens, 12 Wend. N. Y. 170; Todd v. McGee, 2 Bibb, Ky. 350; Patton v. Cooper, Cooke, Dist. Ct. 133.

63 McAllister v. Mullanphy, 3 Mo. 38.

64 Per Lord Mansfield, in Clymer v. Littler, 1 W. Blackst. 345, 348. This is of course true only of the common law ejectment. The modern actions are conclusive on the parties as to the questions involved. In New York by statute a new trial is allowed as of right if applied for within three years. Chatauqua Bank v. White, 23 N. Y. 347.

65 But see Parkes v. Moore, 13 Vt. 183.

66 Coleman v. Doe, 3 Ill. 251.

67 Clerke v. Rowell, 1 Mod. 10. This is owing to the fictitious parties; in modern practice the judgment is conclusive on the parties and their privies. Hanson v. Armstrong, 22 Ill. 442; Peterman v. Huling, 31 Penn. St. 432; Dean v. Dazey, 5 Harr. Del. 440. 68 Adams, Ejectm. 294.

69 Obert v. Hammel, 3 Harr. Del. 73; Marmaduke v. Tennant, 4 B. Monr. Ky. 210. 70 Mason v. Fox, Croke, Jac. 631.

3678. The action of trespass for mesne profits, although a separate action, has always been considered as connected with the action of ejectment, and treated as such. It is an action brought, after a recovery in ejectment, to recover the value of the profits which the defendant has received while he unlawfully held the possession of the premises for which the ejectment was brought, this being the damages the defendant has sustained, and which, in this action, he seeks to recover. We shall consider successively for what causes this action may be brought, the pleadings therein, the evidence, the verdict, and judgment.

71

3679. In the action of ejectment, the right of possession being the subject of controversy, the damages given are in general merely nominal.72 To recover damages, the lessor of the plaintiff, or the plaintiff himself, where the fictions in ejectment have been abolished, is allowed to recover such damages in an action for mesne profits, although he may have recovered damages in the ejectment.73

The plaintiff in the action of ejectment, when brought under the statutes, or the lessor of the plaintiff, at common law, being the person concerned in interest, is the proper person to bring the action for mesne profits, though the action may also be sustained in the name of the nominal lessee. When brought by the former, he may, upon proofs, recover the rents and profits received by the defendant anterior to the time of the demise in ejectment, which cannot be done when the action is brought by the nominal plaintiff, and, for this reason, this course is preferable."

76

The right to recover for mesne profits necessarily follows a successful termination of the ejectment in favor of the plaintiff.75 The amount to be recovered is the value of the mesne profits, after deducting the value of permanent improvements the defendant may have made on the estate. It has been held that the plaintiff may not only recover such profits, but is also entitled to be reimbursed in such amount as he has in good faith been compelled to pay in obtaining, by legal means, the restoration of the property withheld by the defendant tortiously."

3680. In this action, the declaration must expressly state the different parcels of land from which the profits arose, or the defendant may plead a common bar. The time when the defendant broke and entered into the premises and ejected the plaintiff, the length of time during which he ejected him, and the value of the mesne profits of which he deprived him, must also be correctly stated; for if the declaration do not contain these statements, it will be bad on special demurrer.78

"In most of the states the mesne profits are now recovered in the same action as the land. Garner v. Jones, 34 Miss. 505.

In Pennsylvania, the plaintiff in ejectment may recover for mesne profits upon giving notice that he means to proceed for them. Battim v. Bigelow, Pet. C. C. 291. In such case, the damages must be claimed in the declaration, or they cannot be recovered. Bayard v. Inglis, 5 Watts & S. Penn. 465.

73 Van Allen r. Rogers, 1 Johns. Cas. N. Y. 281.

"Buller, Nisi P. 87.

75 Benson v. Matsdorf, 2 Johns. N. Y. 369; Murphy r. Guion, 2 Hayw. No. C. 145.

76 Jackson v. Loomis, 4 Cow. N. Y. 168; Hylton v. Brown, 2 Wash. C. C. 165; Cawdor v. Lewis, 1 Younge & C. Exch. 427; Russell r. Blake, 2 Pick. Mass. 505; Myers r. Sanders, 8 Dan. Ky. 65; Morrison v. Robinson, 31 Penn. St. 456. The value of the improvements can only be allowed by way of set-off to the mesne profits, and cannot exceed them. Yount v. Howell, 14 Cal. 465.

"Doe v. Perkins, 8 B. Monr. Ky. 198. In New York, the damages done by the withholding may be recovered in the ejectment suit, but permanent injuries to the estate must be recovered in a separate and subsequent suit. Hotchkiss v. Auburn R. K., 36 Barb. N. Y. 600.

See Higgins v. Highfield, 13 East, 407.