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son v. Walker, 7 ib. 637.) And it has been held by the court of queen’s bench of England, where the defendant, being in possession of premises, entered into an agreement for the purchase of them ;. and the purchase not being completed, the vendor brought ejectment, that the assent was an acknowledgment by the defendant that the title was in the vendor; and, therefore, at the trial, that it was not necessary for the lessor of the plaintiff to give other evidence. (Doe v. Burton, 15 Jur. 990. Same Case, 6 Eng. Law & Eq. R. 325.)

Although strictly speaking, the relation of landlord and tenant is not created between vendor and vendee; yet the vendee, in ejectment by the owner against him, is absolutely estopped, from either showing title in 'himself, or setting up an outstanding title in another; and the same rule applies to one coming into possession under the vendee, either with his consent, or as an intruder. (Jackson v. Walker, 7 Cow. R. 637.) And in no case as between vendor and vendee, is the vendor required to give a notice to quit, unless the statutes of the state provide for it. (Doolittle v. Eddy, 7 Barb. R. 75. Stem v. Sprague, 20 ib. 509.)

In case a party is let into possession of lands pending a negotiation for a purchase, the claimant bringing ejectment must prove that the defendant was so let into possession by him, and that the negotiation has been broken off. If the defendant took possession under a void lease or agreement, and the action is brought to regain the possession, the claimant must produce and prove the instrument under which the defendant went into possession. If the defendant went into possession under a license, the claimant must show the leave and license, and that the same has been revoked; and it must always appear that the right of possession in the defendant was terminated before the day of the demise in the declaration; and this general rule must in all cases be borne in mind by the claimant in ejectment, whatever may be the relation existing between the parties. But when a privity exists between the plaintiff and the defendant, the plaintiff is not required to make proof of his title, except by the fact that such relation exists.

CHAPTER XXXII.

IN

EVIDENCE THE ACTION OF EJECTMENT ON THE PART OF THE

DEFENDANT - CHARACTER OF THE EVIDENCE ADMISSIBLE ON THE PART OF BOTH PLAINTIFF AND DEFENDANT,

It now only remains to consider very briefly the evidence which is pertinent and requisite for the defendant in the action of ejectment, and the kind and character of the proofs which are admissible in the action, on the part both of the plaintiff and the defendant.

From the well settled principle that a claimant in ejectment must recover on the strength of his own title, comparatively little can be said respecting the evidence necessary on the part of the defendant. The lessee of the plaintiff is always required in the first instance to make out a clear and substantial title to the premises in question. The rule in the cases considered in the last chapter does not militate against this principle. In these cases the proof of the relation existing between the parties establishes the title of the claimant, so that the title of the claimant must in some way be clearly established; and, therefore, the defendant's evidence is altogether confined to falsifying his adversary's proofs, or rebutting the presumptions which may arise out of such proofs. He need not show that he has himself any claim whatever to the premises, nor give evidence of a title in a third person, if he can make it appear to the jury that a legal title does not subsist in the plaintiff.

To defeat the plaintiff, where the lessor claims as heir, for example, the defendant may show, on the trial of the action, after the plaintiff has made out a prima facie case, and rested, that the ancestor had devised the lands in question to a stranger; that by a particular custom, another, and not the claimant, is the heir; that the claimant is a bastard; or any other circumstance which will invalidate the claimant's title.

The question of legitimacy, or illegitimacy, frequently arises on the part of the defendant, as a defense to the ejectment, where • the action is brought by one claiming as heir at law. If the lessor of the plaintiff claim by heirship immediately as the son of the person last seised, the defendant may show that he is not the legitimate son; or if he claims as heir, though other persons interposed between himself and the person last seised, the defendant in that case may show either that the lessor himself, or that some one of those through whom he claims by descent, is not legitimate. The illegitimacy of any one in the line of ancestors will make a complete chasm or breach in the pedigree; an illegitimate person not having an ancestor from whom any blood can be derived.

The illegitimacy of a person may arise, either from being born out of lawful wedlock, or, if born in wedlock, froin not being the true child of the married parties. Who is a bastard, and by what proof the fact of bastardy is established, are elaborately considered in the author's work on Infancy, and the leading authorities upon the subject are there cited; but it is not consistent with the limits and object of this treatise to insert the statement in this place. (Vide Tyler on Infancy and Coverture, 232–235.) Syffice it to say here, that it is the settled doctrine of the common law, that, on an issue as to the legitimacy of a child, it is not necessary to prove the actual marriage of the parents; but the marriage may be proved by evidence of cohabitation, reputation, and the acknowledgment of the parties. The reason for this rule is, that the law favors the presumption of morality in the intercourse between the parties, and consequently also favors the presumption of the legitimacy of the offspring - præsumiter pro legitimatione. (Clayton v. Wardell, 5 Barb. R. 214. And vide Tyler on Inf. and Cov. 865, 866.) The mother of the child whose legitimacy is questioned is not allowed to prove the non-access of her husband during his life-time or after his death; and of course the declarations of a deceased mother are not admissible as to the fact of non-access, which she would not be allowed to prove in person. (Rex v. Luffe, 8 East's R. 193. Rex v. Kea, 11 ib. 132.) The doctrine, however, is clearly settled, that although the birth of a child during wedlock raises a presumption that such child is legitimate, yet this presumption may be rebutted both by direct and presumptive evidence ; and, in arriving at a conclusion upon the subject, the jury may not only take into their consideration proofs tending to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity by attending to the relative situation of the parties, their habits of life, the evidence of conduct, and of declarations connected with conduct,

and to every induction which reason suggests for determining upon the probabilities of the case. When the husband and wife have had the opportunity of sexual intercourse a very strong presumption arises that it must have taken place, and that the child in question is the fruit; and sometimes this presumption is made conclusive by statute. If not made conclusive by the statutes of the state, the presumption may be rebutted by evidence, and it is the duty of the jury to weigh the evidence against the presumption, and to decide as, in the exercise of their judgment, either may appear to predominate. (Vide Case of Banbury Peerage, 2 Selwyn's N. P. R. 731–736. Gardiner Peerage Case, Hargr. Co. Litt. 123, b. Pendrel v. Pendrel, 2 Strange's R. 924. Goodright v. Saul, 4 Term R. 356.)

In case the claimant by heirship was born out of lawful wedlock, then there is no difficulty in determining that he is illegitimate; although in some of the states, as in Verinont, Pennsylvania and Indiana, it is provided by statute that when the father and mother of an illegitimate child or children shall intermarry after the birth of such child or children, and acknowledge and recognize such child or children as their own, such child or children shall be deemed to be legitimate. (Vide Tyler on Inf. and Cov, 233, 234.)

If the lessor of the plaintiff claims as heir, the defendant may show a devise by the ancestor to a stranger; but the presumption in such a case is always in favor of the heir, and if the defendant means to bar the title of the heir at law, he must show affirmatively a devise of the premises in question. (Brandt v. Livermore, 10 Johns. R. 358.)

When the lessor of the plaintiff in ejectment claims as devisee, the defendant may show that the will was obtained by fraud; that it was not duly executed; that the testator was a lunatic and the like; except in the states where the probate of the will is conclusive, which has been fully explained in previous chapters. (Vide ante, chapters 28, 29.) And generally, it may be affirmed, that the defendant's evidence in the action of ejectment depends upon the nature of the proofs advanced by the plaintiff's lessor, and need in no case be extended beyond the rebuttal of them; that is to say, in all cases where the defendant in ejectment did not enter into possession of the premises in suit under the plaintiff, he may show title out of the plaintiff, without connecting himself with it, and thus defeat the action. (Bloom v. Burdick, 1 Hill's R. 130.)

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In ejectment on a mortgage, it is competent for the defendant to show that the mortgage was obtained from him fraudulently, by taking advantage of his derangement of mind, and in order to suppress a prosecution against his son for forgery. (Den v. Moore, 2 South. R. 470.) And indeed the defendant in ejectment may be permitted to give evidence of fraud in the plaintiff, or one under whom he claims, in obtaining the title derived from the defendant in any case. (Torrcy v. Beardsley, 4 Wash. C. C. R. 242.) So also, though the rule is fully established that, as between landlord and tenant, the tenant cannot deny that the person by whom he was let into possession had title at the time he took possession, he may show in his defense that such title is determined, and with respect to the title of a person to whom the tenant has paid rent, but by whom he was not put into possession, he is not concluded by such payment of rent, if he can show that it was paid under a mistake. (Doe v. Barton, 11 Adolph. & Ell. R. 307. Same Case, 39 Eng. C. L. R. 97.)

A defendant in ejectment cannot give in evidence a judgment against a third person, on which the land was sold, and the defendant purchased, unless some color of title to the land be first shown in the judgment debtor. (Kennedy v. Bogert, 7 Serg. & Rawle's R. 97.) But it has been held by the courts of Pennsylvania, that a verdict against a defendant in a former suit, upon the same title, for the same land, and between parties under whom the then plaintiff and defendant claimed, may be given in evidence, though no judgment was entered, if the defendant acquiesced by paying costs and delivering possession. (Shaefer v. Kreitzer, 6 Binn. R. 430.) It has been held in Kentucky, however, that a verdict and judgment in ejectment are not proper evidence in a second ejectment. (Rice v. Lowan, 2 Bibb's R. 149.) But ordinarily the

. judgment in ejectment, like all others, is conclusive as to the subject matter, and between the original parties thereto, and their privies. It is conclusive on the title, only from the day of the demise laid in the declaration; but it is not evidence of title before that time. (2 Phil. Ev. 316.) When the action of ejectment is brought by a landlord on the clause of re-entry contained in the lease, because of an alleged forfeiture, the defendant may show as a defense any matter which will save himself from the forfeiture; as, that he offered the rent to the lessor some time before the last day of payment, though he did not offer it on the most notorious

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