I. R. 427.) But a defendant in trespass and ejectment cannot, at least under ordinary pleas to the maintenance of the action, protect his possession by setting up an outstanding mortgage of the ancestor of the plaintiff purchased in by the defendant pending the action; nor by setting up such a mortgage discharged of record before the commencement of the action, but assigned to him pending the action, although he proves that the mortgage was purchased by him before the action and discharged by mistake of the mortgagee, and the assignment recites the purchase and mistake. Where the title produced by a plaintiff in an action of trespass and ejectment is fatally defective for a cause not noticed or objected to by the defendant at the trial, the court may, nevertheless, grant to the defendant a new trial on the ground of such defect, provided it is apparent that the defect, if objected to at the trial, could not have been remedied by further proof on the part of the plaintiff. (Fitzpatrick v. Fitzpatrick, 6 R. I. R. 64.)

In ejectment to recover possession of lands mortgaged to the plaintiff, it appearing by the defendant's plea that the mortgage was given to recover the payment of a promissory note, the principal sum of which was payable at the end of four years, but the interest annually, it was held, that the condition of the mortgage was broken by the non-payment of the annual interest for three years, although the principal sum was not due; and that a conditional judgment for possession must be entered up for the plaintiff in conformity to section 7, chapter 189 of the Revised Statutes. (Carpenter v. Carpenter, 6 R. I. R. 542.)

In the state of Connecticut the action to recover possession of real property is properly called an action of disseisin, though frequently termed ejectment, and is commenced and prosecuted the same as other personal actions, except that all suits wherein the title to land is to be tried and determined, must be brought and tried in the county where the land lies. (Gen. Stat. 1866, tit. 1, ch. 5, 80.) But if the land consists of an entire lot, tract or farm of land lying partly in two or more counties, the action to recover the same may be brought and tried in either of such counties. (Gen. Stat. tit. 1, ch. 5, § 81.)

The statute of Connecticut provides that persons entitled to the reversion of estate granted or devised upon condition, may, on breach of condition, enter or have the same remedy as the original grantor. (Gen. Stat. tit. 1, ch. 15, § 279.)

Where the action of disseisin is instituted by a mortgagee of real estate, or by any person holding title under him, to obtain possession of such estate by virtue of title derived by mortgage, against the mortgagor, or any person holding title to said estate under him, the defendant may tender the amount of the debt, with the interest to the time of the tender, and the costs of suit, and such tender will be a bar to the further prosecution of the action. And in every action of disseisin to recover possession of lands of any defendant in possession, who has purchased the lands believing that he acquired an unconditional title by such purchase, or who holds under those who have thus purchased, or who have derived a supposed title by devise, inheritance or otherwise from those who have thus purchased, and such defendant, or those under whom he holds or from whom he claims to have derived a title, have made valuable improvements thereon under a belief that he or they acquired a good title by such purchase, devise, inheritance or other conveyance, and the verdict of the jury shall be for the plaintiff, the court before whom such action may be pending may allow the defendant for the improvements, after deducting a reasonable sum for the use of such land, to be adjusted by an accounting; and, if the plaintiff elect in such case, the court may confirm the title to such land in the defendant, on payment of such sum as the court shall find in equity ought to be paid to the plaintiff. (Gen. Stat. tit. 1, ch. 15, §§ 280, 281.)

The cases in which an action of ejectment may be brought in the state of Connecticut have been stated in a previous chapter. (Ante, ch. 4.)

The courts hold that in ejectment it is enough if the demanded premises are described in the declaration with such substantial accuracy that they can be identified by the application of the evidence to the description. And the question necessarily goes to the jury whether the proof is sufficient to enable them to identify the premises proved with those described. (Munson v. Munson, 30 Conn. R. 425.) And the courts also hold that a declaration in ejectment, containing but one count for several distinct parcels of land, is not bad for duplicity; though excepted to on that ground, by special demurrer. Duplicity in other actions is deemed to be merely a formal defect, to be taken advantage of only by a special demurrer, and it was thought duplicity in this action could not, on the trial, interfere in any degree with the justice of the case.

The court thought that the multiplication of counts in the action of ejectment would be a novelty in practice, attended with no advantages, which, although there may be no legal objection to it, they were not called upon to encourage. (Hotchkiss v. Butler, 18 Conn. R. 287.)

It is held that a declaration in ejectment, containing the usual allegations, is good, without demanding seisin and possession of the demanded premises. (Cone v. Cone, 1 Day's R. 134.)

Where the declaration in an action of ejectment described the demanded premises as being bounded south on a turnpike road, and it appeared that they were bounded by the traveled part of such road, the court held that the description in the declaration was sufficiently certain to enable the plaintiff, after establishing his title, to recover the land embraced in the highway. (Wooster v. Butler, 13 Conn. R. 309.)

It is held that an ouster by a tenant in common of his cotenant does not differ in its nature from any other ouster, and in no respect except in the degree of evidence required. In other cases the assumption of ownership is more clearly adverse to all the world. In the case of a tenant in common, such assumption, and the acts which indicate it, may be consistent with the acknowledgment of the rights of the co-tenant; acts, therefore, which are decisive in the one case are equivocal in the other. An actual intent to exclude the co-tenant from the enjoyment of the property must be shown, and no evidence on this point is held to be so satisfactory as a refusal to admit him to possession, or to account for profits received, on a demand made. But this doctrine was not based upon any policy peculiar to the state of Connecticut; but was laid down by the court upon general principles; and it was thought eminently proper and safe, before bringing an action of ejectment against a tenant in common, to test the intent with which the property is holden by a formal demand to be let into the enjoyment of the right claimed. (Newell v. Woodruff, 30 Conn. R. 492.)

It is held that a defendant in ejectment cannot set up an outstanding mortgage of the plaintiff to a stranger, either to show that the plaintiff has no legal title, or to show that his actual title is different from that alleged. (Burr v. Spencer, 26 Conn. R. 159. And vide Birge v. Nock, 34 ib. 156.)

In the state of Connecticut it is held that a man having merely an equitable title must apply to a court of chancery before he can sustain the action of ejectment. (Eells v. Day, 4 Conn. R. 95.)

The governing principle of the action of ejectment in Connecticut is, that the plaintiff must prove a title in himself. But a right of possession derived from the person having the legal title is sufficient. (Law v. Wilson, 2 Root's R. 102.)

If the defendant in an action of ejectment pleads the general issue, and claims no title in himself, it has been held in Connecticut that he shall not be permitted to give in evidence a copy of a deed from the plaintiff's grantor to a stranger, to prove that the plaintiff has no title. But it does not appear from the report of the case whether the objection prevailed on the ground of proving title in a third person, or from its being merely a copy of a deed; if on the former, the decision may be questioned. (Phelps v. Yeomans, 2 Day's R. 227.)

It is held in Connecticut that one tenant in common can maintain an action of disseisin against a stranger, grounding his action on the common title. (Barrett v. French, 1 Conn. R. 354.)

The title of a mortgagee, under a mortgage satisfied after forfeiture, may be set up in Connecticut as a defense to an action of ejectment. (Smith v. Vincent, 15 Conn. R. 1.)

It is laid down in Swift's Digest, page 507, that the action of ejectment in Connecticut definitely settles the title to the land in question, and that the judgment entered therein is a bar to another action. But, according to some of the cases, a judgment in the action of disseisin, either in favor of the plaintiff or defendant, is not conclusive of the title. (Smith v. Sherwood, 4 Conn. R. 276. Bradford v. Bradford, 5 ib. 127.) It has been held, however, that a plea of estoppel to an action of ejectment is allowable. (Crandall v. Gallup, 12 Conn. R. 365.)

This concludes the consideration of the action to recover real property in the New England states. The cases in which the action will lie in all of those states have been considered in a previous chapter. (Ante, ch. 4.)

83

CHAPTER XXXVIII.

THE ACTION TO RECOVER REAL PROPERTY IN THE SEVERAL STATES — THE PRACTICE IN NEW JERSEY, PENNSYLVANIA AND DELAWARE.

In the state of New Jersey, the most of the principles which govern the common-law action of ejectment apply to actions to recover real property, although the practice has been somewhat modified by statute. In the action of ejectment as at present prosecuted in that state, the old consent rule and all the fictions formerly used in the action are abolished, and the action is commenced by summons in the name of the person claiming the premises in question, as plaintiff, and against the tenant in possession thereof, as defendant; the summons must describe the premises with such certainty as will apprise the defendant of their description and situation, and so that from such description possession thereof may be delivered; and if the plaintiff claims only an undivided interest therein, it must also state such interest; and the same must be served in the same manner as declarations in ejectment are required to be served at common law, or in such manner as the court may order, and may be made returnable in term or vacation. (Laws of 1855, ch. 96, § 47. Elmer's Dig. 641.) The form of the summons in ejectment is prescribed by the statute, and may be to the effect following:

New Jersey, 88. The state of New Jersey to the sheriff of the county of Mercer, greeting:

We command you to summon C D to appear before our supreme court of judicature, at Trenton, on the first day of February next, to answer to the complaint of A B, who demands of him the possession of the equal, undivided one-fourth part of a tract of land, with the appurtenances, situate in the township of Hopewell, in said county, containing fifty acres, more or less, bounded on the north by lands of E F, on the south by lands of G I, on the east by lands of J K, and on the west by lands of L M.

And, in default of his appearing and defending this action, judg ment will be entered against him, and he will be turned out of possession of said land.

And have you then there this writ.