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of the commencement of the action, as heir, devisee, purchaser, or otherwise. (R. S., of 1858, tit. 24, ch. 141, SS 1, 2, 8.)
The statute further declares, that no action shall be maintained by a mortgagee, or his assigns or representatives, for the recovery of the possession of the mortgaged premises, until the equity of redemption shall have expired. (R. S., tit. 24, ch. 141, $ 28.)
Any person having the possession and legal title to land may institute an action against any other person setting up a claim thereto; and, if the plaintiff shall be able to substantiate his title to the land, the defendant will be adjudged to release to the plaintiff all claim thereto. (R. S., tit. 24, ch. 141, $ 29.)
Although the statute of Wisconsin does not permit a mortgagee, or his assigns or representatives, to maintain an action of ejectment to recover possession of the mortgaged premises, until the equity of redemption has expired, as fixed by the statutes of the state; yet, if he is lawfully in possession after condition broken, he will not be turned out until his debt is paid. And the same rule will apply in case of a purchaser of the mortgaged premises at a sale under decree of foreclosure. The purchaser in such case succeeds to all the rights of the mortgagee, including the rights acquired by lawful possession after condition broken, and an action of ejectment can no more be maintained against him than against the mortgagee. (Tallman v. Ely, 6 Wis. R. 244. And vide Gillett v. Eaton, Ib. 30. Hennesy v. Farrell, 20 ib. 42.)
Under the Wisconsin statutes, the action of ejectment is held to be a legal remedy, and can be maintained only by a person having a legal title to the land. It is held not to be a proper remedy for a cestui que trust, or one who has only an equitable interest. (Gillett v. Neganza, 13 Wis. R. 472. Eaton v. Smith, 19 ib. 537.)
A sheriff's certificate of the sale of real estate upon an execution issued to enforce a lien under the mechanic's lien law of 1842 is not sufficient to enable the purchaser to maintain ejectment for the premises. He must wait until the expiration of twenty-seven months after the sale, and then procure his deed from the sheriff, when he will be in a situation to seek possession of the premises · ' purchased. (Dean v. Pyncheon, 3 Chand. R. 9.)
It is very doubtful whether a mortgagee, or his assignee, after the mortgage debt is past due, can maintain an action of ejectment to recover the mortgaged premises against a stranger to the mortgagor, claiming under a tax-deed. But it is quite certain, that he
cannot recover possession in such a case without showing that there was a debt past due and unpaid secured by the mortgage; and a decree in foreclosure of the mortgage, when jurisdiction was not obtained over the mortgagor, is not evidence of those facts as against such stranger. (Fladland v. Delaplaine, 19 Wis. R. 459.)
The original owner, or those claiming under him, of land dedicated to public use, inay maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repugnant to the · purpose of the dedication or grant, and this rule will be applied against a railroad company permanently occupying any part of a street dedicated by the owner for such public street, for its roadway. (.Weisbrod v. The Chicago and North Western Railway Company, 21 Wis. R. 602. Gardiner v. Tisdale, 2 ib. 153.)
A pre-emptor under the swamp land act of the state of Wisconsin can maintain an action for the possession of the land preempted. (Maury v. Smith, 10 Wis. R. 509.)
In the state of Minnesota, the common law rule, in respect to the kind of property which may be recovered in ejectment, would seem to prevail, except that the statute provides for the recovery of dower in this action; and a person in possession of real property may sometimes bring the action to determine an adverse claim thereto. (Compiled Statutes, 1858, ch. 64, SS 1, 3. Revision of 1866, ch. 75, SS 1, 3.)
It is held in Minnesota, that an action of ejectment may be brought in favor of a town or city to recover possession of premises dedicated to the public for a public square, against a person having and claiming exclusive possession thereof. (The City of Winona v. Huf, 11 Minn. R. 119.)
In the state of Iowa, any person, having a valid subsisting interest in real property, and right to the immediate possession thereof, may recover the same by action, which may be brought against any person acting as owner, landlord, or tenant of the property claimed; and when the defendant makes defense, it is not necessary to prove him in possession of the premises. But the plaintiff must recover on the strength of his own title. (Rev. Laws of 1860, ch. 144, SS 3569, 3575, 3591.)
So, also, an action of a similar nature may be brought by one having a reversionary interest, or by one either in or out of possession, against another who claims title to real property, although the defendant may not be in the possession thereof, for the purpose
of quieting the question of title. (R. L., ch. 144, SS 3601, 3602.)
An action of ejectment may be maintained for the recovery of dower before admeasurement, or by a tenant in common, or joint tenant of real property against his co-tenant; although in such action the plaintiff is required to show, in addition to his evidence of right, that the defendant either denied the plaintiff's right, or did some act amounting to such denial. (R. L., ch. 144, § 3605.)
The action may be brought under these enactments against persons not in possession of the premises, against him who acts as owner or landlord, and a person may act in either of these capacities, without being in possession. But it should appear, by evidence or by the pleadings, that the defendant acted as owner or tenant of the property claimed; and if as tenant, it should appear that he was in possession of the premises at the commencement of the action; for in this particular the action is assimilated to that of cjectment. (Kerr v. Leighton, 2 Green's R. 196, 199.)
In an action in Iowa to recover the possession of real property, brought by the person holding the legal title, previous to the revision of 1860, an equitable title is no defense against the legal
Where the vendee took possession of real estate, with the consent of the vendor, and failed to pay the purchase-money in accordance with the terms of the contract, the vendor was allowed to sustain an action against the vendee, to recover the possession, without returning so much of the consideration as had been paid, or tendering to the vendor his notes for the purchase-money. (Page v. Cole, 6 Iowa R. 153. Alleyn v. Johnson, 13 Iowa R. 604. Abbott v. Chase, Ib. 453. Farley v. Goochen, 11 ib. 570. Harman v. Steinman, 9 ib. 112.)
But since the revision of 1860, this rule no longer prevails. As the law now stands, an equitable defense may be interposed in a proceeding at law to recover the possession of real estate. Not only so, but in actions strictly legal, the defendant may have positive or affirmative relief for matter purely equitable, in a case properly stated, by way of a counterclaim or cross-demand. For example, in an action to recover real estate, if the defendant has an equitable title to the land, and has done what is requisite to entitle him to a deed, he may, in setting up such equity, ask that his title be perfected by a conveyance; and so also, in such an action, the defendant may state in his answer, by way of counter
claim, a contract to convey the real estate, and ask a specific preferance. (Rozierz v. Van Dam, 16 Iowa R. 175, 178.)
A person owning an undivivided interest in land may maintain his action of right to the extent of his interest. (Hughes v. Holliday, 3 Greene's R. 30.)
Although an action in the nature of an action of right may be brought to quiet title to real property, under the statutes of Iowa, yet an action to quiet title against a party claiming only a lien will not lie under the statute, but should be brought in equity. (Fijervary v. Sanger, 9 Iowa R. 159.)
But it is unnecessary to examine further in this place, the question as to the particular kind of property which may be recovered in the action of ejectment under the local policy of the several states, from the fact, that, as a general thing, the common law upon that subject is still in force, and the cases in which the action can be maintained by the statutes of the several states will be fully examined in another place.
OF THE TITLE WHICH WILL SUPPORT THE ACTION OF EJECTMENT.
It is a maxim of the law that the party in possession of lands is presumed to have a valid title thereto, and this presumption can be overcome only by proving title out of such party. Indeed, it has been said that possession of real estate is prima facie evidence of the highest estate in the property, that is, a seisin in fee. (Hill v. Draper, 10 Barb. R. 454. The People v. Van Nostrand, 9 Wend. R. 50. Keane v. Cannovan, 21 Cal. R. 291. Hutchinson v. Perley, 4 ib. 33. Hicks v. Davis, Ib. 67.
Hicks v. Davis, Ib. 67. Plume v. Seward, Ib. 94. Rolinoe v. Doe, 6 Blackf. R. 85. Gillett v. Eaton, 6 Wis. R. 30. Gardiner v. Tisdale, 2 ib. 153. Jayne v. Price, 5 Taunt. R. 326.) Ejectment is a possessory action, and possession is always presumption of right, and it stands good, until other and stronger evidence destroys that presumption. This presumption of right every possessor of land has, in the first instance, and after a continued possession for the period prescribed by statutes of limitation, under pretense or claim of right, the actual possession ripens into a right of possession which will toll an entry,
But until the possession of the tenant has become so matured, it would seem to follow, that if the claimant shows a prior possession, and upon which the defendant entered without its having been formally abandoned, as derelict, the presumption which arose from the tenant's possession is transferred to the prior possession of the claimant, and the tenant, to recall that presumption, must show a still prior possession, and so the presumption may be removed from one side to the other, toties quoties, until one party or the other has shown a possession which cannot be overruled, or puts an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title, or a right of possession.
Blackstone lays down the principle, that if B, the wrong-doer, dies seised of the land, his heirs have not only a bare possession, but an apparent jus possessionis, or right of possession. (3 Black. Com. 176-178.) Runnington says, the “law presumes the possession transmitted from the ancestor to the heir to be a rightful possession, until the contrary is shown; and, therefore, the mere entry of him who has the right will not be allowed to .evict the heir.” (Runn. on Eject. 12.) Buller lays down the same doctrine: “If the plaintiff prove that A was in possession of the premises in question, and that his lessor is heir to A, it is prima facie ; for it shall be intended that A had seisin in fee till the contrary appear.” (Bull. N. P. 103, 109.) But this doctrine needs to be qualified a little. Undoubtedly, if a person be found in possession of land, claiming it as his own in fee, it is prima facie evidence of his ownership and seisin of the inheritance. It is not, however, the possession, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, evidences no more than the mere fact of present occupation by right; for the law will not presume a wrong: and that possession is just as consistent with a present interest under a lease for years, or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law go in his favor. (La Frombois v. Jackson, 8 Cow. R. 603. Adams v. Guier, 30 Miss. R. 397. Ricard v. Williams, 7 Wheat. R. 59. Jackson v. Porter, Paine's R. 457.) And it may be affirmed that it is necessary for a claimant in ejectment to show in himself a good and sufficient title to the