except such as labor under disability. (R. S. 1857, ch. 55, arts. 1-34.)

The statute prescribes a form for the declaration, writs and pleas in ejectment, and declares that the same shall be sufficient under the act. (R. S. ch. 55, art. 35.)

To sustain an action of ejectment in Mississippi, the plaintiff must have the legal title to the land at the commencement of the action; an equitable title is not sufficient. The grantor in a deed of trust, or a mortgagor, cannot maintain an action of ejectment to recover the premises mortgaged or conveyed in trust, until entry of satisfaction made upon the margin of the record, in the manner required by the statute, or proof of payment of the debt secured. And a trustee, holding the naked legal title, the trust being satisfied, cannot assert that title in an action of ejectment against the cestui que trust under the policy of Mississippi; nor can the cestui que trust recover in ejectment against the trustee holding only the naked legal title. Where the defendant in ejectment has a title, which in equity would be regarded as superior to the legal title of the plaintiff, the plaintiff will not be entitled to recover; but he may file a bill in chancery to try the defendant's equitable title under the Revised Code. Ordinarily, possession, accompanied by a claim of title, is held to be prima facie evidence of a seisin in fee, and sufficient to put the opposite party upon proof of his right. And an outstanding title, set up by a defendant in ejectment to bar the plaintiff's right of recovery, must be a present, subsisting, operative title, and not one that has, in legal presumption, become extinguished. (Heard v. Baird, 40 Miss. R. 793. Brown v. West, 8 ib. 181. Thompson v. Wheatley, 13 ib. 499.) A defendant in an action of ejectment cannot defeat the plaintiff's recovery by showing that he has purchased an outstanding title, which was barred by the statute of limitations at the time of his purchase. And where both parties in the action claim title from the same common source, and the plaintiff has the older and better title from that source, the defendant cannot defeat his recovery by setting up an outstanding paramount title with which he has no connection. (Griffin v. Sheffield, 38 Miss. R. 359. And vide Day v. Cochran, 24 ib. 261.) But the plaintiff, in an action of ejectment, who relies upon a deed as the foundation of his title, must show, with reasonable certainty, by proof, that the land in possession of the defendant is embraced in his deed. And it is held, that a defendant in

ejectment, having color of title, is not a mere intruder; and where he has such color of title he may set up a subsisting outstanding title in a stranger to defeat the recovery of the plaintiff. (Nixon v. Porter, 38 Miss. R. 401.)

In the state of Louisiana provisions have been made by the legislature for the revision of the Code and statutes of the state; but the same have not yet been published, or, if published, they have not come under the observation of the author; and it is, therefore, impracticable to give any of their provisions in this treatise. Under the late practice of the state, a petitory action was brought, in which the mere title to the land in controversy was sought to be litigated and enforced; and, in addition, they also had the ordinary action of ejectment for the recovery of the possession of real property. But it is uncertain whether these actions are retained in their ancient form in the new Code or not. It is, however, quite probable that they are. In 1866 the legislature passed an act which provided that in all suits of ejectment of tenants, filed in the supreme court, the parties shall be entitled to preference, which the court holds cannot operate retrospectively, and does not, therefore, apply to appeals filed previous to the passage of the act. (Hoa v. Lefranc, 18 La. An. R. 393.)

It is held by the courts of Louisiana that the petitory action, or the action by which real property, or any immovable right to such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee. But if the farmer or lessee of real estate be sued for this cause of action, he must declare to the plaintiff the name and residence of his lessor, who must be made a party to the suit, if he reside in the state, or is represented therein, and who must defend it in the place of the tenant, who will be discharged from the suit. And it is held that the plaintiff in an action of revendication must make out his title; otherwise, the possessor, whoever he be, will be discharged from the demand. (Millaudon v. Ranny, 18 La. An. R. 196.)

In a petitory action in Louisiana the plaintiff must succeed on the strength of his own title, and not on the weakness of the adverse title. But where a party obtained a quit-claim deed by falsely and fraudulently attributing to himself certain rights, the court will not interfere and correct the error. (Cannon v. White,

16 La. An. R. 85. Bookout v. Anderson, 2 ib. 246. Knox v. Pulliam, 14 ib. 123.)

Where a party has expressly recognized the title of another to property, and thus estopped himself from questioning the validity of such title, a party holding the same property under him as vendee must be held to a recognition of that title, and must show that he has acquired the same, or fail in maintaining his right to the property. This was held in respect to the property in a slave; but the same principle, probably, would be recognized in an action for land. (Girault v. Zuntz, 15 La. An. R. 684. Vide Hughes v. Barrows, 4 ib. 250.)

But, in the absence of the revision of the statutes and Code of Louisiana, it will not be profitable to occupy space with a reference to the decisions which have been made under the late practice of the state.

In the state of Arkansas the action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. And the action may also be maintained in all cases where the plaintiff claims the possession of the premises under or by virtue of, first, an entry made with the register and receiver of the proper land office of the United States; second, a pre-emption right under the laws of the United States; third, where an improvement has been made by him on any of the public lands of the United States, whether the lands have been surveyed or not, and where any person other than those to whom the right of action is given in the preceding clauses as in possession of such improvement. (Ark. Dig. 1858, ch. 61, §§ 1, 2.) So also the action may be maintained in all cases where the plaintiff claims possession of the premises under or by virtue of an entre made with the proper swamp land agent or land agent of the proper land office of the state of Arkansas; and the patent certificates granted by any of the aforesaid officers are made evidence of title in the party to whom it is granted. (Arkansas Digest, ch. 61, § 5.)

The action of ejectment must be brought and prosecuted in the real names of the parties thereto, and may be brought against the person in possession of the premises claimed, or his lessor, or both. And the person from or through whom the defendant claims title to the premises may, on his motion, be made a co-defendant. (Dig. ch. 61, §§ 6, 7.)

It is made sufficient for the plaintiff to aver in his declaration, that, on some day therein to be specified, he was entitled to the possession of the premises, describing them, and, being so entitled to the possession thereof, that the defendant afterward, on some day to be stated, entered into such premises, and unlawfully withholds from the plaintiff the possession thereof, to his damage any sum he may claim. (Dig. ch. 61, § 8.)

The executor or administrator of any person who, if living, would be entitled to bring an action of ejectment, may maintain the action in his own name; and, in that case, he must aver in his declaration that, on the day therein specified, his testator or intestate was in possession of the premises, etc. (Dig. ch. 61, $$ 3, 9.)

The statute provides that the defendant may plead the general issue to any action of ejectment, or he may plead his defense specially; and all pleadings and proceedings must be conducted as in personal actions, except where it is otherwise prescribed. The general issue must be that the defendant is not guilty of unlawfully withholding the premises from the plaintiff, as alleged against him; and such plea will put in issue every matter required to be established by the plaintiff on the trial to entitle him to recover; and the defendant may, under such plea, give in evidence any matter in bar of the action. (Dig. ch. 61, §§ 10, 11, 12.)

To entitle the plaintiff to recover, he must prove that, at the commencement of the action, the defendant was in possession of the premises claimed, and that the plaintiff had title thereto, or had the right to the possession thereof; but, if the action is brought by a joint-tenant, or tenant in common, against his co-tenant, the plaintiff must show, in addition, that he has been actually ousted, or totally denied his right as such co-tenant. (Dig. ch. 61, §§ 13, 14.)

If the plaintiff prevail in the action, he may recover, by way of damages, the mesne profits, except where the plaintiff, or those under whom he claims title, may have entered, in any land office of the United States within the state of Arkansas, the improvement of the defendant, and the action is brought to recover the possession of such improvement; in which case the plaintiff can recover no damages. (Dig. ch. 61, § 15.)

If the right of the plaintiff to the possession of the premises expire after the commencement of the action, and before the trial, the verdict must be returned according to the fact, and judgment

must be entered only for the damages and costs. If judgment be rendered against the defendant, the judgment will be for the recovery of the premises, and a writ of inquiry will be awarded to assess the damages. And where the judgment for the plaintiff is both for the recovery of the possession of the premises, and for the damages, the plaintiff may have a writ of possession, and an execution for the damages and costs in the same process. Where the judgment for the plaintiff is only for damages and costs, execution will issue thereon as in personal actions. (Dig. ch. 61, §§ 16-20.)

No action of ejectment, where the plaintiff does not claim title to the lands, can be brought or maintained when the plaintiff, or his testator or intestate, has been five years out of possession. (Dig. ch. 61, § 22.)

It has been held that, where the title of the plaintiff in ejectment is controverted under the general issue, he must prove, first, that he had the legal estate in the premises at the time of the commencement of the suit; second, that he had the right of entry; and, third, that the defendant, or those claiming under him, were in possession of the premises. These propositions would seem to be very plainly settled by the statute itself, but it has also the additional force of judicial construction. (Daniel v. Lefevre, 19 Ark. R. 201.)

The courts have held that it was not the intention of the legis lature to confine the benefits of the act concerning ejectments to the pre-emptor or purchaser, but to extend them equally to all persons who might lawfully succeed to their rights. (Cloyes v. Beebe, 14 Ark. R. 489. And vide McLarren v. Wicker, 8 ib. 122.)

It has been held that an administrator cannot, as such, maintain ejectment against a tenant in possession of lands belonging to the intestate. (Merrill v. Merrifree's Administrator, 5 Ark. R. 629. Hill's Administrator v. Mitchell, Ib. 609.) But the doctrine of these cases is not warranted by a fair and legitimate construction of the statute from which it is confessedly drawn, and has, in fact, been virtually overruled. (Merrifree's Administrator v. Merrifree, 8 Ark. R. 9.)

Under the statute of Arkansas it has been held that a certificate of entry of public land, and payment of the purchase-money, is sufficient evidence of a legal title, unless such entry was void, to enable the purchaser to maintain an action of ejectment. (Gaines v. Hale, 16 Ark. R. 9.) But it has been held that, under the pro