fact; but if it rests upon any existing right, the defendant must show it affirmatively in his defense. Upon this reasoning, and upon these principles, a complaint in ejectment, which alleged "that the said plaintiffs are the owners in fee as tenants in common, and have the lawful right and are entitled to the possession of the described premises, and "that the said defendants wrongfully entered upon, and are now in the wrongful and unlawful possession of, said premises, and wrongfully and unlawfully withhold the possession thereof from said plaintiffs;" followed by the prayer: “Whereupon the plaintiffs demand judgment that they recover and be put in possession of said premises, and that the defendants pay damages for the unlawful withholding of said premises, and for the rents and profits thereof in the sum of $3,000," was held sufficient on demurrer. (Payne v. Treadwell, 16 Cal. R. 220. And vide Salmon v. Simonds, 24 ib. 260.) And it has been held that a complaint in ejectment, with general averments in the usual form, is sufficient, without a specific averment of the facts. To set out the facts connected with the title, and the wrongful acts of the defendant, it was said, would produce confusion without benefit. (Garrison v. Sampson, 15 Cal. R. 95. And vide Coryell v. Cain, 16 ib. 571. Depuy v. Williams, 26 ib. 313.) But, if the plaintiff in ejectment attempt to set forth in his complaint a specific deraignment of his title, he must aver every fact that he could be required to prove in order to recover, and where one of the links in his chain of title, as set out in the complaint, is a will, the complaint must aver that the will has been admitted to probate. (Castro v. Richardson, 18 Cal. R. 478.)

An allegation in a complaint in ejectment that the plaintiff, on a day named," was possessed of" certain lands therein described, "which said premises the said plaintiff claims in fee simple absolute," is an allegation of title in the plaintiff to the premises in fee simple absolute, and it is held that it is not necessary in a complaint in ejectment to aver an ouster by the defendant. An averment of a wrongful withholding of the possession by the defendants is equivalent to an averment of an ouster. It is the right to the possession as between the parties that is tried in ejectment, and this right to the possession is the title. (Marshall v. Shafter,

32 Cal. R. 176.)

The defendant in an action of ejectment may put in an answer denying generally each and every allegation contained in the plaint

iff's complaint, and under such general denial in his answer he may give in evidence title in himself. An allegation in an answer of the defendant in ejectment of title in himself, does not constitute new matter, and is only equivalent to a general denial of title in the plaintiff. If the plaintiff in his complaint avers title in himself, and the defendant interposes a general denial, the respective titles of the plaintiff and the defendant are put in issue. (Marshall v. Shafter, 32 Cal. R. 176.)

A defendant in ejectment is bound to bring forward all matter of a strictly defensive character, or be precluded from again litigating the same; but he is not bound to set up or litigate new matter constituting a cause of action in his favor. (Ayres v. Brushy, 32 Cal. R. 620.)

The defendant, in an action of ejectment to recover the possession of land, cannot set up in his defense a former suit pending between the same parties, brought for the recovery of the same land, unless it is averred in the answer that the second action is for the same injury as the first, and that the same matters are in issue and may be tried in the first action. A party may have two suits against the same defendant for the recovery of the same land pending at the same time, if the second is brought on a title acquired after the cominencement of the first. (Vance v. Olinger, 27 Cal. R. 358.)

A mere equitable title to land, if of such a character as in equity entitles the holder to possession, is a sufficient defense, under the California system of practice, to an action for the possession brought by the holder of the legal title. Whenever a right claimed under the rules of the common law is denied, governed or controlled by the principles administered by courts of equity, the latter will prevail over the former. The plaintiff, to recover in ejectment, must show both a legal and equitable title or right. of possession. From proof of the legal title a right of possession will be presumed, but the presumption may be rebutted by proof of an equitable title in another of a character to carry the right of possession. The practice in California is analogous to that of Pennsylvania in respect to the action for the recovery of real property, where the courts administer equity in common-law actions, and in actions of ejectment enforce the rights of the parties in accordance with the rules and principles of equity. (Willis v. Wazencraft, 22 Cal. R. 607.) But an equitable title cannot avail

a defendant in an action of ejectment unless it be pleaded. (Cadiz v. Majors, 33 Cal. R. 288.)

A defendant in ejectment, who desires to set off the value of his improvements against the mesne profits, must assert his right by proper averments in his answer, or he is precluded from doing so at the trial. (Moss v. Shear, 25 Cal. R. 38. Carpentier v. Gardiner, 29 ib. 160.) The right of a defendant in ejectment to set off the value of improvements made by him against the claim of the plaintiff for damages depends upon whether they were made by him or his grantors holding under color of title adverse to the plaintiff, in good faith, and upon whether they are permanent or not. And an answer in ejectment which seeks to set off the value of improvements against damages, should aver that they were made while holding under color of title adverse to the plaintiff, in good faith, and that they are permanent. (Carpenter v. Small, 35 Cal. R. 346. And vide Bay v. Pope, 18 ib. 694.)

A defendant in an action of ejectment may show in defense a title to the demanded premises acquired by him after the commencement of the action. And, when the plaintiff's complaint contains an averment that the title to the demanded premises is in the plaintiff, and the defendant's answer denies the averment, the defendant may show on the trial that the plaintiff has divested himself of the title before the commencement of the action, by executing a deed to a third party, although the defendant does not connect himself with the title of such third party. (Tustin v. Faught, 23 Cal. R. 237. Dyson v. Bradshaw, Ib. 528. Martie v. Thorp, 29 ib. 444.) But the conveyance of the demanded premises by the plaintiff in ejectment, pending the suit, to a person not a party to the action, does not necessarily defeat the action. (Barstow v. Newman, 34 Cal. R. 90.) The sale and transfer by the plaintiff in ejectment of the demanded premises pending the action is a transfer of the cause of action within the meaning of the sixteenth section of the practice act; and the action may be continued in the name of the original plaintiff. (Moss v. Shear, 30 Cal. R. 468.) New matter must be specially pleaded; and, in ejectment, a transfer of title by the plaintiff, or a title acquired by the defendant, pending the action, must be pleaded by supplemental answer, or it cannot be given in evidence. (Moss v. Shear, supra.)

In an action of ejectment against several defendants, the plaintiff may at any time before trial dismiss the action as to some of the defendants, and proceed against the others alone. (Reed v. Calderwood, 22 Cal. R. 463.)

Where, in actions of ejectment, the parties claim under adverse or different titles, and the court trying the cause without a jury finds as a fact that the title is in one of the parties as claimed, the supreme court held that, while it is not necessary, in addition, to specify in the findings the facts constituting the claim of title set up by the opposite party, yet, as a matter of convenience in practice, and to facilitate the decision thereon on appeal, the adoption of such a practice is recommended. (Morrill v. Chapman, 35 Cal. R. 85. Vide Henry v. Evarts, 30 ib. 426. Sears v. Dixon, 33 ib. 326.)

In ejectment the verdict may be joint against several defendants without specifying their respective lots in a whole tract, when they file a joint answer which contains no averment as to the particular portion of land occupied by each, no proof being offered on the point, no damages being claimed, and defendants being in possession. (McGarvey v. Little, 15 Cal. R. 27.)

The recovery of a judgment in an action of ejectment is evidence that at the commencement of the action the plaintiff was entitled to the possession as against the defendant; but, in order to constitute it evidence against a third person not claiming under the defendant, it must be shown that the third person bore such a relation to the defendant's title that it was his duty to have defended the action upon the requisite notice thereof being given, and that he had a proper opportunity to make a defense founded upon such title. (Calderwood v. Brooks, 28 Cal. R. 151.) And a judgment for the plaintiff in ejectment is not conclusive except as against defenses actually made, or legal defenses that might have been made on the trial, and does not preclude a defendant from asserting a title subsequently acquired. (Mann v. Rogers, 35 Cal. R. 316.) But, if the respective titles of the parties, or their right to the possession of the demanded premises, are put in issue and tried in ejectment, and the plaintiff recovers judgment for possession, the judgment is an estoppel, and the defendant, to avoid the estoppel in a subsequent action to recover the same premises, must show some other right of possession than he had when the judgment was rendered. The fact that a judgment in ejectment is not that the plaintiff recover the title, but only that he recover possession, does

not prevent the judgment from being an estoppel as to whatever rights the parties respectively possessed. (Marshall v. Shafter, 32 Cal. R. 176. And vide Caperton v. Schmidt, 26 ib. 479.)

The supreme court of the United States recently held, that, where the plaintiffs in ejectment showed a legal title to land in California under a patent from the United States and a survey under their authority, it was proper in the court below to refuse to admit testimony offered by the defendants to show that the survey was incorrect, the defendants claiming under a merely equitable title. And the court also decided, as a point of practice in California, that, where the defendants pleaded severally the general issue, it was proper for the court below to instruct the jury to bring in a general verdict against all those who had not shown that they were in possession of separate parcels; and, further, that the mode of proceeding by petition, as is the practice in California, does not alter the law of ejectment under the old system of pleading. Grier, J., delivering the opinion of the court, said: "Although the circuit court may have adopted the mode of instituting the action of ejectment by petition and summons instead of the old fiction of lease, entry and ouster, it is still governed by the principles of pleading and practice which have been established by courts of common law. The hybrid mixture of civil and common-law pleadings and practice introduced by state codes cannot be transplanted into the courts of the United States.

"In the action of ejectment, a plaintiff will not be allowed to join in one suit several and distinct parcels, tenements or tracts of land in possession of several defendants, each claiming for himself. But he is not bound to bring a separate action against several trespassers on his single, separate and distinct tenement or parcel of land. As to him they are all trespassers, and he cannot know how they claim, whether jointly or severally; or, if severally, how much each one claims; nor is it necessary to make such proof in order to support his action. Each defendant has a right to take defense specially for such portion of the land as he claims, and by doing so he necessarily disclaims any title to the residue of the land described in the declaration; and, if on the trial he succeeds in establishing his title to so much of it as he has taken defense for, and in showing that he was not in possession of any of the remainder disclaimed, he will be entitled to a verdict. He may also demand a separate trial, and that his case be not complicated