Jackson ex dem. Murray v. Hazen — 2 Johns. 22

Majority

p. 22

Jackson, ex dem. Murray & Bowen, against Hazen.

Headnote

This was an action of ejectment, brought to recover a piece of land, in lot No. 24, in Hassenclsaver’s patent, in Ilerlcimer county, and was tried at the Circuit Court in that county on the 28th June, 1806, before Mr. Justice Spencer. The counsel for the plaintiff, on opening the cause, stated, that they should .prove a mere possessory title in the lessors of the plaintiffs, namely, that Bowen, one of the lessors of the plaintiff, being in the possession of the premises in question, on the 1st of Jammy, 1803, leased them to one Wait, for a year, for the rent of $35. Wait entered, and continued in posscssion, and at the end of the year, surrendered the premi-

Where the les-tiffin an'action hadbeenhnhe peaceablep°3' premises tor s ¿«féudant'a*' tcnvsrds cn* tered, without ri'giit^lr'was heid. thatsuch a possession wouid mabie the plaintiff t0 maintain e-gainsTthe defendant who sidered as a

ses to Bowen ; when one Battles, under a contract with Bowen, entered, and continued in possession of the premises Until the 1st of January, 1806, when he surren- 7 J7 7 dered them to Bowen. Shortly after, the defendant en- , . ... tered, and took possession of the premises, without any claim or colour of right, from any person whatever. On tjjjs statement, the judge ruled, that the title proposed to be proved, was not sufficient to enable the plaintiff to recover, in this action, without showing a privity of interest between the defendant and one of the lessors of the ■plaintiff; and that the same was inadmissible as evidence of a possessory title.

The plaintiff was, therefore, nonsuited.

A motion was made to set aside the nonsuit.

Ford, for the plaintiff.

Possession is always prima^[1] Posses-possessor to maintain trespass against all persons but the real owner.^[2] Now the ac tion 0f ejectment is, in its nature, an action of trespass, and the same evidence, as to title, in the one, is- sufficient. in the other. Anciently, nothing but damages yvas recovered, but it is now a proceeding in rem.^[3] If plaintiff can show that he was in possession of the premises, any time within 20 years, it is sufficient to support an action of ejectm.ent.^[4] The person first in pos session, is deemed to haye the right, and here the plain- , ° . 1 tiff was in possession, and the defendant entered without any colour of right. The presumption of right is in favour of the plaintiff^[5] and unless the defendant could show some right or title, the plaintiff was entitled ^tóa"e €Vic^ence of a legal title in the possessor.' sion will enable the

p. 23

to recover : for being1 disseised without any right in the ° . . J defendant, he may recover against him, without showing any other title.

Sedgwick, contra.

The plaintiff must always recover, on the strength of his own title. He must show. some title. Mere presumption is not sufficient. In ejectment it is necessary to prove a lease, or a title, which is equivalent. A judgment in ejectment is conclusive, in an action for mesne profits. Now, if a mere possession

even for a month, would entitle the possessor to maintain ejectment, a trespasser might recover mesne profits against one who had as good a title as himself.

Had the defendant come into possession of the premises peaceably, a question would have then been presented whether t he lessors of the plaintiff, who relied upon a mere possessory title, were not bound to show a possession for 20 years; and .this was, probably, the point of view in which the judge, at the circuit, considered the question raised. Hut, according to the statement of the case, the cause does not turn on that point. The defendant must be considered as a trespasser. One of the lessors of the plaintiff had been in the peaceable possession of the premises for near- 3 years, when the defendant entered upon him, without any claim, or colour of right, or title, from any pérson whatever. This was a tortious entry, and' it never can be permitted, that a party should derive a right from his own unlawful act. The nonsuit must therefore be set aside, and a new trial awarded, with costs to abide the event of the suit.

New trial granted.