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mon. It has been decided, however, that under the statute, if all do not join in one action, each must bring a separate suit for his individual share; and it was accordingly held that two out of seven tenants in common, could not bring a joint action. (Cole v. Irvine, 6 Hill's R. 634.) But in a later case, the judge who delivered the opinion of the court declared that there was no difficulty in this state in tenants in common uniting in the action of ejectment, saying: “As their right to unite did not depend upon the statute, which received a construction in Cole v. Irvine, there is no necessity as there is no reason for applying the principle there decided.

In Jackson v. Bradt, there was a recovery of ten-twelfths of the premises, showing that it was not then considered necessary that all the tenants in common should unite in the action, althongh several had done so.” (Kellogg v. Kellogg, 6 Barb. R. 116, 132.) Tenants in common are deemed to have several and distinct freeholds, and each is considered as solely or severally seised of his share; and it is difficult to understand upon what principle they can sue jointly in actions that savor of the realty, without a statutory provision to sanction it. At the same time it is conceded that the common-law rule relating to the recovery of real estate by tenants in common has been changed by the statute of New York, before quoted; so that now in this state, tenants in common entitled to any real estate may join in the action for the recovery of it.

VI. In respect to the recovery of the real estate of lunatics, the action must, in all cases, be brought in the name of the lunatic, unless in some particular state a statute may exist, authorizing the action to be brought in the name of a committee or guardian. At common law, the action of ejectment must be brought in the name of the lunatic personally, and not in the name of the committee. The authorities on the subject are uniform, that the action must be prosecuted in the name of the lunatic. The committee is a mere bailiff or servant, acting under the direction of the court, which has the care and custody of idiots and lunatics, and of their real and personal estate, and the interest and the right of action remain in the lunatic. (Petrie v. Shoemaker, 24 Wend. R. 85.) Lane v. Schermerhorn, 1 Hill's R. 97. Drury v. Fitch, Hutton's R. 15. Cocks v. Dawson, Hobart's R. 215. Knipe v. Palmer, 2 Wils. R. 130.)


In the state of New York, receivers and committees of lunatics and habitual drunkards, appointed by any order or decree of the court, may sue in their own name for debts, claims and demands transferred to them, or to the possession and control of which they are entitled as such receiver or committee; but there is no similar provision in respect to the recovery of the real property of the lunatic.

Of course, the nature of the title which will support the action in favor of a lunatic must be the same as that required in the action in favor of a person who is sane.

VII. It seems that ejectment may be maintained for freehold lands, on the demise of a person attainted of a felony, where there has been no office found on behalf of the king. When this question first came before the court of king's bench of England in 1833, Lord Denman, C. J., said: “Then comes the question, whether, even before office found, a person civilly dead can convey any interest in his lands which are forfeited to the crown. On this point no sufficient authority has been brought to our notice. We must take further time to consider it."

On a subsequent day of the same term, the chief justice delivered the judgment of the court, and said: “The only point in this case upon which the court took time to consider


whether an action of ejectment can be maintained upon the demise of a person attainted of felony. It is admitted that an estate of freehold, which this was, is not divested in cases of attainder, until office found. Here no office has been found, and therefore the crown is not entitled.

" It is laid down in Perkins' Profitable Book, title 'Grants,' $ 26, that a man attainted of felony or murder, etc., may make a grant of a rent or common, or a feoffment, etc., and the same shall bind all persons, but the king (for his time), and the lord of whom the land is holden. This passage is referred to in Comyn's Digest, title Capacity,' d. 6. The same doctrine is laid down in Sheppard's Touchstone, 232.

“The passage in Co. Lit. 42, b, which seems at first sight to be contrary, will, on examination, be found to be consistent with these authorities; for, after stating that persons attainted of felony have no ability to enfeoff, etc., he concludes: 'for the feoffments, etc., of these may be avoided;' and doubtless they may be by the

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“ The case of Bullock v. Dodds, 2 B. & A. 258, was pressed in argument. It is sufficient to say, as to that case, that it was an action for a chattel which had vested in the king without office found, and is therefore no authority upon this occasion. We are, therefore, of opinion that Humphrey Evans, the lessee of the plaintiff, was capable of granting, and that judgment must be given for the plaintiff.” (Doe v. Pritchard, 5 Barn. & Cres. R. 765.)

Forfeiture of estate, and corruption of blood, under the laws of the United States, and including cases of treason, are abolished. (Laws of U. S. of 1790, ch. 9, $ 24.) Forfeiture of property, in cases of treason and felony, was a part of the common law, and must exist at this day in the jurisprudence of those states where it has not been abolished by their constitutions or by statute. But it is understood that there is at present no forfeiture in the United States for felony; and in only a few of the states for treason. (Vide 2 Kent's Com. 386.) Usually, by statute, a sentence of imprisonment in a state prison, for any term less than for life, suspends all the civil rights of the person so sentenced, during the term of such imprisonment; but as a general thing, the title to real property, derived from a person guilty of any crime, however heinous, before he has been actually convicted and sentenced, is sufficient upon which to predicate the action of ejectment.

VIII. Under certain circumstances, possession, unaccompanied by an acknowledgment of title in another person, is sufficient to enable the party to maintain ejectment. It has been before stated that possession is prima facie evidence of ownership; and as between two parties who rely solely upon possession, the presumption of ownership is in favor of the first possessor; so that proof of possession by a claimant, however short, will entitle him to recover, unless the defendant can account for such possession, or show a prior possession or title in himself or a third person. As the question of a possessory title has been fully discussed in a previous chapter, it is wholly unnecessary to dwell upon the subject here. (Vide ante, ch. 4, and also Doe v. Cook, 7 Bing. R. 346.)

IX. Finally, it has been held, that where the lessor of the plaintiff and the defendant in ejectment, had before referred their right to the land to an arbitrator, who had awarded in favor of the lessor, the award concludes the defendant from disputing the title of the lessor, in an action of ejectment. The award cannot have the


operation of conveying the land; but there seems to be no reason why the party may not conclude himself by his own agreement, from disputing the title of the lessor in ejectment. The parties had consented that the award of the arbitrator chosen by themselves, should be conclusive as to the right to the land in controversy between them; and the court declared that sufficient to bind them in the action of ejectment. (Doe v. Roper, 3 East's R. 15.)

Upon a similar principle, it has been held, that if one party agree in writing with another, that he shall own and hold a piece of land to him and his heirs, and he delivers him the possession, and that possession is held and enjoyed for a time beyond the memory of man; in such case, though the writing be deficient in the requisite terms to pass a fee, the party will be concluded, by his agreement and subsequent acts, from disputing the title. (Emans v. Turnbull, 2 Johns. R. 313, 332.)

The matter of arbitrating, however, is frequently regulated by statute, and sometimes, as in New York, no submission can be made respecting the claim of any person to any estate in fee or for life, to real estate; while any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be subunitted to arbitration. (2 N. Y. Stat. at Large, 560, $ 2.)

It has been held that this statute forbids the submission of claims to an estate in lands, only when the controversy is as to the legal title, and not when the equitable title only is in dispute. (Olcott v. Wood, 14 N. Y. R. 32. Vide Sellick v. Adams, 15 Johns. R. 197.) But it will be important in all cases where title is claimed by an award under a submission to arbitration, that the statutes of the state be consulted to see if there exists any prohibition in the particular case.




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In the preceding chapters, the nature of the title necessary to support an action of ejectment has been considered in those cases in which the title to the premises claimed must be actually proved by the claimant. In the beginning of that discussion it was asserted that there were cases in which the claimant might not in fact have title to the land in dispute, and yet the circumstances be such as that, between the parties to the action, the title would be established. These cases chiefly arise where the relationship of landlord and tenant has subsisted between the parties; and it now remains to consider the rights of landlords and tenants in respect to the remedy by ejectment, and the usual modes by which tenancies may be determined, and the estate of the tenant forfeited. This particular subject fills about one-quarter of Mr. Adams' entire Treatise on Ejectment, and the discussion is confined exclusively to the practice in England. It is proposed here to examine the subject in respect to both England and America; and it is hoped and expected, even then, to condense the matter into a much smaller compass than it occupies in the work of Mr. Adams.

It is well said by Mr. Adams, that the power of determining a tenancy is necessarily consequent upon the right of creating one; and the law implies a mutual reservation of such power in all contracts between landlords and tenants, whenever it is not expressly reserved. Whenever such power is expressly reserved, the determination of the tenancy is, of course, dependent upon the terms of the reservation; and the tenancy will cease when the term ends, the event happens, or the covenants are broken; but

; if there be no express reservation, but the party is let into possession as tenant under a general holding, the law creates between the parties a tenancy from year to year, determinable by a notice to quit from either, by the landlord or tenant. This is the rule, in brief, as stated by Mr. Adams, and it cannot be any better expressed. (Adams on Eject. 73.)

It would seem to be a very clear proposition, that when the tenancy is determined by the efflux of time, or the happening of a

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