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plaintiff produced a deed from Lathrop to Nichols, the other lessor, older than the deed to Miller, but it appeared that when this last deed was executed, the defendant was in possession, holding adversely; on that ground the court held that the plaintiff could not recover. It therefore became necessary to decide whether the plaintiff could recover upon Lathrop's title notwithstanding his deed to Miller. The objection was raised, that such

. a release could not be pleaded or given in evidence, because the lessor was not the party of record; but it was urged that it was void for maintenance. The court held that even if it was an act of maintenance, which they did not decide, yet it was good between the parties, and that Lathrop could not recover against his deed, but that he was estopped by it; that the only objection which could have been made at the trial was, that it was not pleaded. In the action of ejectment, they say we must look steadily to the legal title. The court held that the release onght to have been pleaded puis darrien continuance, so that it might have been returned as parcel of the nisi prius record; but decided that if a matter which ought to have been pleaded is admitted in evidence by consent, it will be as effectual as though pleaded, and the case was regarded in that light, and the release held to defeat the action. (Jackson v. Demont, 9 Johnson's

R. 55.)

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In a much later case in the state of New York, the defendant was permitted to plead puis darrien continuance at the circuit at which the action was moved for trial, a release by one of two lessors of the plaintiff after the suit in ejectment was brought. The plea was demurred to, and the court held that the same was insufficient, for the reason that a release by one of two lessors of the plaintiff is no bar in an action of ejectinent, such release affecting only the quantum of interest; but the practice of admitting the plea puis darrien continuance was sanctioned in all cases when the matter of defense arises after the issue is joined. (Jack80n v. McClaskey, 2 Wend. R. 541.)

It would seem from the marginal note in one case, that the defendant would not be permitted to plead the release of the then plaintiff to the defendant puis darrien continuance, but the case warrants no such inference. That was a motion to be permitted to plead such a release executed before the last continuance, and the motion was denied on the ground that the defendant did not show by his affidavit a sufficient excuse for not pleading the release before. (Jackson v. Bell, 19 Johns. R. 168.)

Where the interest of the lessor of the plaintiff in ejectment in the land claimed had been duly sold by virtue of an execution before the action was brought, but the sheriff's deed was not executed until after the issue in the cause had been joined, the court held that these facts constituted a defense, and might be given in evidence under the general issue, and that the same need not be pleaded puis darrien continuance. But Sutherland, J., said: “That the general rule, requiring matter of defense which has arisen after issue joined, to be pleaded puis darrien continuance

applicable to this as well as other actions, is abundantly settled in this court. (Jackson, ex dem. Colden, v. Rich, 7 Johns. 194.

, Jackson v. Demont, 9 id. 60, per Kent, Ch. J. Jackson v. Mo Connell, 11 id. 424. Jackson v. Bell, 19 id. 168.)”

The court, however, held, that, as the sale of the premises having taken place before the commencement of the action, the sheriff's deed would redate back to the day of sale by the sheriff; and hence the defense was available under the plea of the general issue. (Jackson v. Ramsey, 3 Cow. R. 75.) It was thought by Judge Sutherland, who delivered the opinion of the court in Jackson v. Ramsey, that the same was a case to which the doctrine of relation was peculiarly applicable, for the reason that there were in the case no strangers or third persons whose interest could be affected by it. The doctrine is this: “Where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred ; and to this the other act shall have relation.” (Vin. Abr. Tit. Relation, 290.) This principle has been repeatedly recognized by the American courts, but the authorities need not be referred to here.

When the ancient practice prevailed in England, if the plaintiff in ejectment, after issue joined, and before the trial, entered into any part of the premises, the defendant at the assizes might plead such entry as a plea puis darrien continuance. But by the modern practice the plea was considered unnecessary; for the plaintiff, being a fictitious person, could not enter the land; and, if the lessor of the plaintiff should enter, he would be unable at the trial to prove the possession of the defendant, and must consequently fail in his ejectment. (Moore v. Hawkins, Yelv. R. 180.) And, in the state of Connecticut, it has been held, that, when the plaintiff entered into the possession of the premises pending the action, this was not cause of abatement of the action of ejectment. (Venner v. Underwood, 1 Root's R. 73.)

Although the action of ejectment is not now prosecuted as at common law, either in England, or generally in the American states, yet the principles laid down in this chapter are quite applicable to the action as at present maintained; and therefore the common-law practice in respect to the plea of the defendant and the issue in the action is explained in this place.

CHAPTER XXVI.

THE EVIDENCE IN THE ACTION OF EJECTMENT PROOF REQUIRED OF

THE CLAIMANT -THE POSSESSION OF THE DEFENDANT PROOF OF QUSTER, WHEN REQUIRED- WHAT IS SUFFICIENT ÈVIDENCE OF OUSTER.

The evidence in the action of ejectment is in many respects peculiar, and varies often by reason of the position of the parties. Besides, the statute sometimes declares what must be, or what need not be, proved by the parties respectively in the action. The common law rule with respect to the evidence in the action is applicable in all cases, except when changed by a local statute, which will be noted where statutes exist. It may be laid down as a general proposition, that, inasmuch as the proceeedings in the action of ejectment are instituted for the

are instituted for the purpose of trying the question which of the litigating parties is entitled to the possession of the land in dispute, the lessor of the plaintiff must prove the defendant in possession of the premises which he seeks to recover, or if the defendant defend as landlord, the lessor of the plaintiff must prove the tenant of the defendant in possession of such premises ; and further, the lessor of the plaintiff must show in hi elf a legal title to the possession, at the time when he supposed to have made the demise stated in the declaration ; and in some cases he must prove an actual ouster by the defendant. The action of ejectment, with its curious and amusing English fictions, is retained in but few if any of the states; and hence the action is at present usually prosecuted by, and in the name of, the

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real party in interest. Therefore, what was formerly required to be proved by the lessor of the plaintiff, is now required to be proved by the plaintiff himself.

When the old consent rule was in vogue, the defendant was required to specify, in the consent rule, for what premises he intended to defend, and to consent to confess upon the trial, that the defendant (if he defended as tenant, or, in case he defended as landlord, that his tenant) was, at the time of the service of the declaration, in the possession of the premises in dispute; and if, upon the trial, the defendant did not confess such possession, as well as lease, entry and ouster, whereby the plaintiff was not able further to prosecute his suit against such defendant, then, as has been before explained, no costs were allowed for not further prosecuting the same, but the defendant was required to pay costs

, to the plaintiff in that case, to be taxed. But as the action is now prosecuted, unless the possession of the defendant is admitted by the plea, or the statute dispenses with the proof of such possession, the plaintiff will be nonsuited on the trial, if he fails to prove the defendant's possession of the premises mentioned in the ejectment, or at least of some part thereof. If the defendant in possession is the mere servant of another, by whose permission he entered into possession, he may be turned out of possession by the rightful owner of the premises, provided he is entitled to the possession thereof; but it must appear in the action of ejectment, by the admissions of the parties, or other proof, that the defendant dispossessed the plaintiff, or was in the actual possession of the land at the time the action was colomenced. (Doe v. Stradling, 2 Stark. R. 187. Cooper v. Smith, 9 Serg. & Rawle's R. 26. Pope v. Pendergast, 1 Marsh. R. 122. Eastin r. Rucker, 1 Marsh. R. N. S. 236. Cooley v. Penfield, 1 Vt. R. 244. Stevens v. Griffith, 8 ib. 448.)

In some of the states statutes exist allowing the action of ejectment to be maintained against a party out of possession, who claims an interest in the premises in dispute, and in such cases the plaintiff is required to prove that the defendant claimed to own the premises, or some interest therein as may be named in the statute.

Instances may occur where persons procure themselves to be made defendants in the action of ejectment, when the plaintiff will not be required to prove the defendant in possession, and though such a voluntary defendant might be proved not to be in possession, the plaintiff may, notwithstanding, be entitled to a verdict. In fact, in such a case, the defendant might be estopped from showing that he was not in possession. (Goshan v. Brenon, 2 Doe's R. 174.)

The possession of the defendant may be proved by his declarations, his occupation of the premises, by residing thereon, or by any other acts of ownership which the case affords, as receipt of rent, cutting down trees on the premises, and the like. (Stanley v. White, 14 East's R. 333.)

When the landlord unites with the tenant in defending the suit, it is sufficient to prove the tenant to have been in possession at the commencement of the suit, and his possession is deemed to be the possession of the landlord. In such a case a copy of the rule of court, certified by the clerk, is sufficient evidence that the landlord was admitted to defend. (Jackson v. Harrow, 11 Johns. R. 434.)

In ejectment against the assignees of a bankrupt, it appeared in evidence on the trial that, upon being required to yield up possession of the premises to the claimant, they answered that it was not consistent with their duty to do so; this was held to be sufficient proof that the defendants were in possession of the premises at the time of the commencement of the action, and that, therefore, the action was properly brought. (Doe v. Taylor, 2 Stark. R. 535. Same Case, 3 Eng. C. L. R. 463.)

The location of the premises must correspond substantially with the description in the declaration or complaint. Thus, where the

. premises were described in the declaration as situate in two parishes which were united only for the purpose of maintaining their poor, the variance was held fatal. (Goodtitle v. Lammiman, 2 Camp. R. 274. Vide Doe v. Welsh, 4 ib. 274.) But where the lands were stated to be situate in the parish of A and B, which were distinct parishes, the demise was considered, upon a motion for a new trial, as of lands situate partly in one and partly in the other parish. (Goodtitle v. Walter, 4 Taunt. R. 671.) And where the premises were laid in the declaration to be in the parish of Farnham, and at the trial before Heath, J., at Buckingham, were proved to be in the parish of Farnham Royal, which was contended to be a fatal variance, the learned judge said, that unless the defendant could prove that there were two Farnhams, he should direct a verdict for the plaintiff; and no such proof being offered, the plaintiff recovered accordingly; and the court of

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