Majority
p. 483Jackson, ex dem. Starr and wife, against Richmond. ALBANY. August, 1809. moved to amend the declaration in this cause, by inserting a demise from Elisha Jenkins and several others, who, he stated, in an affidavit, were necessary lessors, in order to support the plaintiff’s title, is had been discovered since the commencement of the present suit. He cited 2 Caines, 260, 261. read an affidavit, stating that he had never understood, that the persons whom the plaintiff wished to be made lessors, claimed any estate or interest in the premises in question ; that the present lessor claims the premises in question,. in right of his wife, the only child and heir at law of her father, and against Elisha Jenkins and the others, named in the affidavit on the part of the plaintiff.
Headnote
In ejectment, a person who has no claim, or any subsi:-tivg title to the premises in question, will not be allowed to be made a lessor.VAN BUREN, for the plaintiff,
E. Williams, contra,
The general rule is, that a person ought not to be made lessor, who has no claim or pretension to a subsisting title or interest in the premises. If any person, v.ho may have once had a title, is to be made lessor, the burthen of deducing a title from him, is taken iron the plaintiff, and thrown on the tenant, which
p. 484
would be unreasonable. Potior est tonditio possidentis. If there is a case that ought to be excepted from the general rule, it ought to be clearly and specially stated to the court. The motion must be denied.
Rule refused.