lands in dispute. The party claiming the right to the lands must recover, if at all, on the strength of his own title, and not on the defects in that of his adversary. This is an elementary principle in the action of ejectment, and it has been reiterated over and over again by the courts. The claimant in the action will not be assisted by the weakness of the defendant's claim, because the possession of the latter gives him a right against every person who cannot establish a title. This is the general rule, in respect to which there is no exception, and it has been established by a world of authorities, both in this country and in England. The party who would change the possession must make out a title, upon the strength of which he must recover, if at all. (Roe v. Harvey, 4 Burr. R. 2484. Doe v. Barber, 2 Term R. 749. Elder v. Doe, 6 Blackf. R. 341. Huddleston v. Garrett, 3 Humph. R. 629. Winn v. Cole, Walker's R. 119. Roe v. Harvey, 4 Binney's R. 2487. Colston v. McKay, 1 Marsh. R. 251. Covert v. Irwin, 3 Serg. & Rawle's R. 283. Smith v. Lorrillard, 10 John's. R. 339. People v. Leonard, 11 ib. 504. Hill v. Draper, 10 Barb. R. 454. Atherton v. Johnson, 2 N. H. R. 35. Goulding v. Clark, 34 ib. 148. Brady v. Hennion, 8 Bosw. R. 528. Armstrong v. Pierson, 4 Greene's [Iowa] R. 45. Boylan v. Meeker, 4 Dutch. R. 274.) But, although the general rule in actions of ejectinent is, that the claimant must recover upon the strength of his own title, as above stated, this general principle has been so far modified, that, when the owner of the true title neither objects nor consents to the possession of either party, the court regards the better right, as between the parties, to be vested in the first possessor, and grantees claiming through him. (Hubbard v. Barry, 21 Cal. R. Vide Burenius v. Coffee, 14 ib. 91.) And when no legal title is shown, the party showing the prior possession will be held to have the better right. (Shultz v. Arnot, 33 Missouri R. 172. Wilson v. Palmer, 18 Texas R. 592. Hutchinson v. Perley, 4 Cal. R. 33. Bergnette v. Caulfield, Ib. 278. Potter v. Knowles, 5 ib. 87. Turner v. Aldrige, 1 McCall's C. C. R. 229. Nagle v. Macy, 9 Cal. R. 426. Bird v. Lisbros, Ib. 1. Shumway v. Phillips, 22 Penn. R. 135. Tappscott v. Cobbs, 11 Gratt. R. 172. Inns v. Nunn, 12 Geo. R. 469. Best on Presumptions, 87.)

321.

A prior possession is sufficient to entitle a party to recover in an action of ejectment against a mere intruder or wrong-doer, or a person subsequently entering without lawful right, if the action

to regain the prior possession be brought within a reasonable time; if, however, there has been delay in bringing the suit, the animus revertendi must be shown, and the delay must be satisfactorily accounted for, or the prior possessor will be deemed to have abandoned his claim to the possession. And it has been accordingly held, that, where there was a prior possession of eleven years, and then an entry by the defendants claiming under a title adverse to such possessory title, the omission to bring a suit for thirteen years, with knowledge of the adverse entry and continuance of possession under it, would authorize a jury to find an abandonment of claim by the prior possessor. (Whitney v. Wright, 15 Wend. R. 171.) But when the lessor of the plaintiff, and those under whom he claimed, had been in possession of the land in dispute from 1805 to 1821 or 1822, when the plaintiff's tenant left the premises, and the defendant entered on the vacant possession in December, 1822, without any claim or color of title, it was held that the plaintiff was entitled to recover on the strength of his prior possession; but the reason why the premises had been left vacant was explained by proving that the plaintiff did not know his tenant had left the property until he found the defendant in possession. (Jackson v. Dunn, 5 Cow. R. 200. Vide Livingston v. Walker, 7 ib. 637.)

The plaintiff, in an action of ejectment, must not only show a complete title in himself to the land in dispute, but he must identify himself in accordance therewith; and where the judge at nisi prius instructed the jury that, in the absence of any proof of title to the land in controversy on the part of the defendant, he had no right to complain of any adjustment between the lessor of the plaintiff and the person through whom the lessor of the plaintiff claimed as to the particular land the vendee of the lessor designed conveying, and that the land he designed conveying was in fact that which was actually conveyed, the court in banco held the instruction to be erroneous. (McRaven v. McGuin, 9 Smedes & Marsh. R. 34.)

But it is not necessary that the plaintiff show a good and valid title to the land in dispute against all the world. It is only necessary that he prove a good title and a right to recover as against the defendant. It is enough that he has a title which is either in itself good against all the world, or good against the defendant by estoppel. (Garrett v. Lyle, 27 Ala. R. 286. Clark v. Diggs, 6

Iredell's R. 159.) And the rule that the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary, cannot be made available by a defendant against a plaintiff whom he has fraudulently induced to purchase a weak title. (Lane v. Reynard, 2 Serg. & Rawle's R. 64. But vide, contra, Walker's Lessee v. Coulter, Addison's R. 390.)

The action of ejectment may be maintained on a title to land by estoppel. There can be no doubt of this proposition, and it has been expressly so held in a case involving the precise question in the supreme court of the United States. (Stoddard v. Chambers, 2 How. U. S. R. 284.)

It is not indispensable that the plaintiff in an action of ejectment should show a perfect indefeasible estate in fee simple, to authorize a recovery against one who can establish no legal right either of property or possession. (Lewis v. Gogueth, 3 Stewart & Porter's R. 184.) But possession should not be ousted without a clear title in the other party, especially when it has been upheld by the state tribunals. (Preston's Heirs v. Bowman, 6 Wheat. R. 580.) And a plaintiff in ejectment who has no title whatever cannot recover, though he sue for the use and benefit of another who has the title. (Brooking v. Desmond, 27 Geo. R. 58.) But a defendant in ejectment who shows no title to the lands in dispute cannot take advantage of technical imperfections in the plaintiff's title. (McAlister v. Williams, 1 Turn. R. 334. Zoringue v. Williams, 15 La. An. R. 76.) Ahd when the plaintiff in ejectment shows a connection between his title and the title of the person in whose namé he sues, it will be considered that he is authorized to use the name of the latter in the action. (Adams v. McDonald, 29 Geo. R. 571.) Of course, it cannot avail the plaintiff any thing to show that some third person has a better right to the premises in dispute than the defendant, unless he can connect himself in some way with the title of such third person; and the same rule will apply to the defendant in an action of ejectment. (Vide Bailey v. March, 3 N. H. R. 274. People of Enfield v. Permit, 8 ib. 512.) When an individual has the right of mining on the land of another, he may maintain ejectment for the land against an intruder. (Turner v. Reynolds, 23 Penn. R. 215.)

The claimant in an action of ejectment must not only have a title to the lands in dispute, but he must be clothed with the legal title to such lands; an equitable title, as a general rule, will not answer

the purpose. It is usually indispensable to the plaintiff's right to recover in the action, that he establish in himself a legal title to the premises at the time of the commencement of the action; and this doctrine is peremptory, except in those states where they have no courts of equity, or where the statutes of the state have changed an equitable into a legal estate. (Robinson v. Campbell, 3 Wheat. R. 212. Fenn v. Holme, 21 How. U. S. R. 481. Hickey v. Stewart, 3 ib. 750. Agricultural Bank of Mass. v. Rice, 4 ib. 225. Carson v. Boudinot, 2 Wash. C. C. R. 33. Jackson v. Dermont, 9 Johns. R. 60. Wright v. Douglas, 3 Barb. R. 554. Winn v. Cole's Heirs, Walker's R. 119. Carroll v. Norwood's Heirs, 5 Harr. & Johns. R. 164. Hammond v. Imlois, 4 Md. R. 138. Cresap v. Hutson, 9 Gill's R. 269. The State v. The State Bank, 5 Ind. R. 353. Jay v. Burdell, 25 Ill. R. 537. Williams v. Hartshorn, 30 Ala. R. 211. Moody v. Farr, 33 Miss. R. 192. Laurissini v. Doe, 25 ib. 177. Deisson v. McLands, 12 Geo. R. 166.) This principle is so fixed at common law, that a trustee may maintain ejectment against his own cestui que trust, to recover possession of the trust property; and this doctrine has been recognized by the courts of the American States. (Jackson v. Pierce, 2 Johns. R. 226. Beach v. Beach, 14 Vt. R. 28. Matthews v. Ward, 10 Gill & Johns. R. 456. Gillette v. Traganza, 13 Wis. R. 472. Eaton v. Smith, 19 ib. 557. And vide Moore v. Burnet, 11 Ohio R. 334.) It has been held, however, that when the consideration for the land has been paid by the cestui que trust, there was a resulting trust in his favor, so that he would be considered as possessing the equitable estate, and the legal also, so far as to enable him to maintain an action of ejectment, for the land thus held. (North Hempstead v. Hempstead, 2 Wend. R. 109.) And it has also been held, that, after the purpose of the trust-deed has been satisfied, the cestui que trust may maintain ejectment upon a demise in his own name, although the legal estate is still in the trustee. (Hopkins v. Ward, 6 Munf. R. 38.) But the rule at common law, and in all of the States which have preserved the distinction between legal and equitable titles to land, is, that the plaintiff in ejectment must show a legal title in himself to the land he claims, and the right of possession under it, at the time of the demise laid in the declaration, and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it may be, but must seek his remedy in chancery. But in those states where

there is no court of equity, the courts of common law necessarily deal with equitable interests as if they were legal, and exercise powers over them which are unknown to courts of common law, where a separate chancery jurisdiction is established; and in such states the action of ejectment may be maintained upon an equitatable title; and it ought to be stated that, as the title to real property, whether legal or equitable, and the mode of asserting that title in courts of justice, depend altogether upon the laws of the state in which the land is situated, it is important, in all cases involving questions of local law, that the statutes of the state and the decisions of the state tribunals be examined.

In order that an action of ejectment in favor of several plaintiffs be sustained, all must show a legal title to the land in controversy, and the right to the immediate possession thereof, not only at the time of the commencement of the action, but also at the time of the trial and judgment. (Cheney v. Cheney, 26 Vt. R. 606. Alden v. Grove, 18 Penn. R. 377.) And title acquired after the commencement of the action will in no case entitle the plaintiff to recover. (Vide McCoole v. Smith, 1 Black's U. S. R. 454. Baylor v. Neff, 3 McLean's R. 302.)

In the time of Lord Mansfield, the court of king's bench adopted a different rule from that which had previously existed in England, and exercised a species of equitable jurisdiction in the action of ejectment; accordingly, in one case a mortgagee was permitted to maintain ejectment against a tenant, claiming under a lease granted prior to the mortgage, such mortgagee having given notice to the tenant that he did not intend to disturb the possession, but only to get into the receipt of the rents and profits of the estate. (Keech v. Hall, Doug. R. 21.) In other cases, the legal estate of a trustee was not allowed to be set up against the cestui que trust,.and in one case at least, an agreement for a lease was held tantamount to a lease, and in still another case, it was held that a reversioner could recover his reversionary interest in ejectment, subject to a lease and immediate right of possession in another. (Adams on Eject. 33.) But those cases have all been overruled, and the action of ejectment in England, as it generally does in this country, now rests upon the legal title to the lands in dispute. It is the settled doctrine of the supreme court of the United States, that no action of ejectment will lie on an entry made with the register and receiver of the land office, and upon