Ely v. Ballantine

Headnote

In ejectment, although the use of the names of any other than the real claimants is abolished, still counts may be inserted in the name of both grantor and grantee, where the objection of adverse possession at the time of the conveyance to the grantee is anticipated.

The defendant moved to strike out two counts in a declaration, in an action of ejectment commenced under the revised statutes, on the ground of the pendency of a previous action of ejectment for the same premises, in which the same persons named as plaintiffs in those counts were named as lessors of the plaintiff in the previous action, which is in the name of James Jackson, as nominal plaintiff, according to the former practice. The plaintiff resisted the motion, alleging that the counts moved to be stricken out were inserted in the declaration to prevent an anticipated objection to a recovery in the name of Ely, the plaintiff named in the first. count, on the ground that he had conveyed to the persons named as plaintiffs in the second and third counts, and that there could not be a recovery in their names in the first action, because at the time of the conveyance to them, the premises in question were held adversely.