Where the claimant in the action of ejectment is a guardian, he must prove the title to the lands in dispute to be in his ward, and produce a regular appointment, from a competent tribunal, as the guardian of his ward. If he be a testamentary guardian, appointed by the parent of the infant under the statutes of the state, he must prove the seisin of the parent; the due execution of the deed or will, and the minority of the ward at the time of the demise.

And it may be affirmed, that in all cases where the claimant in ejectment brings his action in a representative character, he must be prepared to prove the relation which he sustains to the party for whose benefit the action is brought, as well as the other material facts necessary to be established in the action. That is to say, if he be the assignee of a bankrupt, or of an insolvent debtor, he must prove the title of the bankrupt or insolvent, and a regular and valid assignment of the estate to him; and if the ejectment is brought by a personal representative, he must show his representative character by producing the probate of the will, or letters of administration, in addition to the proof of his testator's or intestate's title. (Vide Doe v. Andrews, 4 Bing. R. 348. Garret v. Lister, 1 Lev. R. 25. Elden v. Kiddell, 8 East's R. 187. Doe v. Edwards, 7 Adolph. & Ell. R. 240.)

If the action of ejectment is brought by a parson for the parsonage-house, glebe or tithes under the English laws, the claimant must prove his admission, institution and induction, but he need not show a title in his patron, for institution and induction, although upon the presentation of a stranger, are sufficient to put the rightful patron to his quare impedit. (Snow v. Phillips, 1 Sid. R. 220. Bull. N. P. 105.) Something akin to this is found in the parish system of several of the states, where the parsonage and other lands devoted to pious 'uses are held by the minister in charge, in fee simple, in the right of his parish or church. In these cases, where the minister in charge is regularly dismissed, or is removed by death, his successor, when settled, will succeed to all the rights of the former, and can recover the lands which belong to the parish. (Jewett v. Burroughs, 15 Mass. R. 464.) And on the resignation, deprivation or death of the minister, the fee of the parish lands is in abeyance until there be a successor. (Weston v. Hunt, 2 Mass. R. 500. Dillingham v. Snow, 5 ib. 547. Brunswick v. Dunning, 7 ib. 445. Brown v. Porter, Cheever v. Pearson, 16 Pick. R. 266.)

10 ib. 93.

As a general rule, in the American states, statutes exist under which religious corporations are created, and in such cases the corporation, and not the trustees thereof, holds the real estate, and an action to recover the possession of the lands belonging to the corporation must be prosecuted in the corporate name of the society. And where a religious corporation brings the action, it is necessary to prove on the trial that the society has been duly incorporated, and the title of the corporation to the land in dispute; except that frequently a statute exists declaring that when a corporation is the plaintiff in an action, its corporate existence need not be proved, unless specially denied by the defendant in his answer or plea.

Where the claimant in ejectment relies upon a title to the land in dispute by ordinary grant, it is necessary that he should prove upon the trial of the action a good and valid conveyance to him before the commencement of the suit from some person, persons or corporation, in whom was the legal title to the land at the date of the conveyance. It will be remembered that in this country the universal method by which one individual aliens or conveys his land to another is by a formal instrument in writing, under seal, called a deed. At common law it was not necessary that the deed be signed; it was only required that the instrument be sealed and delivered. But in all, or nearly all, of the American states the deed is not complete and effectual until it is signed as well as sealed and delivered. The deed must be sealed, or it must have something upon it answering to a seal, according to the law of the state where the land lies. As to what will answer as a seal for a deed, the rule is by no means uniform. Sometimes the statute requires that some adhesive substance be applied to the paper or other material on which the contract is written; sometimes an impression of a seal upon the material is all that is required; and sometimes a scroll with a pen is made sufficient. But it is not the purpose in this place to give all of the requisites of a good and valid conveyance; suffice it to say, that the claimant in a real action must prove such a deed as is required by the laws of the state where the land lies; and the burden of proof of the formal execution of the deed is always upon the party claiming under it. Any particular formalities required by statute, as essential to the validity of the deed, such as a stamp, and the like, must be shown to have been complied with.

If a deed under which the plaintiff claims in ejectment has been properly proved or acknowledged, and duly registered or recorded, an exemplified copy thereof will be admitted in lieu of the original deed. But in the absence of such exemplified copy, the original must be produced and proved upon the trial, unless it has been lost, when it may be proved as a lost instrument. If the deed has appended to it a certificate of proof or acknowledgment, which is in accordance with the statute, the same may be read without other evidence. In the absence of such certificate, the plaintiff must prove the execution of the deed by the subscribing witness, if he can be produced; and if the subscribing witness is dead, or cannot be produced, the deed may be proved in the same manner as other writings of a private nature may be proved in similar circumstances. In all cases it must appear that the deed has been executed in accordance with the statute of the state where the land lies. If the instrument, when produced, appears to have been altered, or there are any grounds of suspicion apparent upon its face, the party producing it must explain its appearance. But the general rule is, that if nothing appears to the contrary, the alteration will be presumed to have been made at the time the deed was executed. (Vide Bailey v. Taylor, 11 Conn. R. 531, 534. Gooch v. Bryant, 1 Shepley's R. 386, 390. Crabtree v. Clark, 7 ib. 337. Pullen v. Hutchinson, 12 ib. 249, 254. Doe v. Catsmore, 15 Jur. 728. Same Case, 5 Eng. Law & Eq. R. 349.) There are exceptions to the general rule as to the method of proving a deed, which are fully explained in the learned treatises on evidence, easily accessible to the student. It is incumbent on the plaintiff in ejectment to prove the proper conveyances from a party having the title. If the conveyance is from a party in peaceable possession claiming title at the time it was executed, that is sufficient, for possession is prima facie evidence of title. But if the conveyance is from a person out of possession, as in case of wild lands, the claimant must show a grant of the land from the original source of title, as a patent from the state, and a regular title from such grantee to himself, or he will fail in his action. The certificates of location and purchase of lands issued under the laws of California, are held to be prima facie evidence of title in the holders, in the courts of that state. It should be stated, however, that the statute makes these certificates prima facie, not conclusive evidence of title, and it therefore leaves them open to be attacked by any proper proof showing their invalidity.

But the burden of proof is upon those contesting them. (Richter v. Riley, 22 Cal. R. 639.)

A grantee, whose grantor had neither title nor possession when he conveyed, cannot maintain ejectment against the tenant in possession. This proposition is too clear to call for the citation of authorities. It has been held that a plaintiff in ejectment is entitled to recover upon the parol acknowledgment of the tenant, having no title in himself, that the plaintiff is the owner of the premises. It appeared that the plaintiff had a regular deed of the premises in dispute, which he had held for ten years, but he failed to show title in his grantor, except that the defendant in possession had expressly admitted that the lessee of the plaintiff was the owner of the land; and on this evidence the plaintiff was permitted to recover. The court remarked that the admission was not to operate to divest a title previously shown in the party making it; it was not to transfer title; and hence the plaintiff was allowed to recover upon the admission of the defendant alone, and the parol acknowledgment was held to be valid and effectual. (Jackson v. Denison, 4 Wend. R. 558. And vide Jackson v. Cole, 4 Cow. R. 593.) And in ejectment, evidence may be allowed of the confession of the defendant, made after the commencement of the action, in relation to his own title. (Morris.v. Vanderen, 1 Dall. R. 64.) But such declarations made before the commencement of the action have been excluded. (Wallace v. Miner, 6 Ham. R. 366.) The admissions of the defendant in regard to his possession are competent. (Jackson v. Dobbin, 3 Johns. R. 223. Jackson v. Scissam, Ib. 499. Andrews v. Fleming, 2 Dall. R. 93.) And hearsay evidence of the location of the land has been admitted. (Scott v. Ollabaugh, 3 Har. & McHen. R. 511.) But declarations, with regard to the boundaries of the land, of a person who was interested at the time, are not competent evidence in an action of ejectment, for the party claiming under the person interested. (Jarrett v. West, 1 Har. & Johns. R. 501.)

Where the claimant is the commonwealth, or the party constituting the original source of title to the land, it is only necessary for the plaintiff to show that the lands have been unoccupied for some period within the statutory limit for bringing an action to recover possession, and that the defendant was in possession at the time the action was commenced.

CHAPTER XXXI.

EVIDENCE IN THE ACTION OF EJECTMENT WHERE A PRIVITY EXISTS BETWEEN THE PLAINTIFF AND THE DEFENDANT-PROOFS BY MORTGAGEES

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PROOFS BY LANDLORDS AGAINST TENANTS -PROOFS IN OTHER CASES WHERE A PRIVITY EXISTS BETWEEN THE PARTIES.

THERE is a class of cases in which the defendant is not permitted to controvert the title of the claimants in an action of ejectment on the ground of estoppel. These are cases where a privity exists between the defendant and the plaintiff, or those from whom he derives title. If a privity in estate has subsisted between the parties, proof of title is ordinarily unnecessary on the part of the plaintiff, for the reason that a party is not permitted to dispute the title of him by whom he has been let into possession. In all these cases, therefore, the proof is directed to the question as to whether such a relation exists between the parties as to operate as an estoppel, and thereby supersede the necessity of introducing any evidence to establish the title of the claimant. These cases are not very numerous, but all those of the class to which the principle applies may be referred to.

I. The principle of estoppel arises where the action is between mortgagee and mortgagor, their privies or assigns. It has been stated in a previous chapter that, at common law, a mortgagor may bring his action to recover the mortgaged premises immediately after the mortgage becomes forfeited, and this rule of the common law is fully recognized in England, and in many of the American states; the common law governs except in those states where it has been modified by express statute. (Ante, ch. 9.) Where the lessee of the plaintiff is the mortgagee of the premises, and the mortgagee himself is the defendant, the only evidence of title required of the claimant is the due proof of his mortgage; and in England, and in many of the states, it is held that the mortgagee need not show that he has given any notice to quit, or even demanded the premises before the commencement of the suit. This has been held certainly in North Carolina and Vermont. (Fuller v. Wadsworth, 2 Iredell's R. 263. Williams v. Bennett, 1 ib. 122. Lyman v. Mower, 6 Vt. R. 345. Wilson v. Hooper, 13 ib. 653. And vide Keech v. Hall, 1 Doug. R. 21.