CH. 178. 5Com.D.712, Co. L. 384. And Co. L. 374. § 7. But if the remainder is executed, the demandant may have a formedon in descender, without stating the prior remainders. Where a bad deed, to make a tenant to the precipe, appears, the court will not presume a good one. 8 Co. 88; Reg. 243, 244; 2 Stra. 2267. § 8. Pleas are not only the general issue, ne donas pas, pl. 3, E. 4. but also special pleas; as a common recovery; also a gift after a disseizin, and after the gift, a recovery by the disseizee; and exchange of lands by the ancestors of the parties, and that the plt. has the lands given in exchange: so an estate prior to the gift may be pleaded in bar; and after the gift a remitter to this prior estate so that the donor was seized after the gift, and made an estate to the tenant &c. in fee: so, a warranty by way of rebutter: so a feoffment with warranty and assets; and if formedon in remainder or reversion, a collateral warranty; and if the formedon be of a moiety, though it shows the uses of the other moiety, the deft. need plead only to the moiety demanded. § 9. If the deft. in ejectment &c. confess he went into possession under one of the plt's. lessors, he may recover. It being a matter of fact for the jury to decide whether the deft. holds under any of the lessors of the plt. or not; and if the jury infer from the evidence he does, he cannot defend in this action. And 3 Johns. R. 499. And Sav. 86. 3 Johns. R. 223, Jackson v. Dobbin. 357.-19 H. VI. 46. Cowp. 473, Weakley v. § 10. A agrees in writing, not stamped, to make B a lease Bucknell.-6 for twenty-one years. Benters and has possession eighteen D.& E. 554-years, under this agreement, without any lease being de2 Eq. Ca Abr. manded or tendered; held, this agreement and possession is a good defence against ejectment or other action, merely possessory brought by A; and if he were to recover at law, equity would immediately set the matter right. It seems by the agreement, B was entitled to a lease, and chancery would order one given by A, therefore a court of law would not allow him to recover the possession of B, when another court would, in another suit, direct a lease and possession, of course, to be delivered back to B. 7 D. & E. 433. 1 Caines' R. 444.-1 Dal las. 126. Chipman, 69. § 11. Wherever an entry upon land is necessary in order to ground an action to recover, that entry must be averred and proved, or confessed before the action is brought. If not so, the deft. has a good defence. If the deft. has recognized the plt. as his landlord, he cannot dispute his title. § 12. The deft. in ejectment must confess lease, entry, and ouster, for all the tenements demanded in the declaration. Confession of a part cannot be allowed. It appears from this and many other cases that the English action of ejectment is adopted in Pennsylvania, as well as in New York &c. very much in the English form, and on English princi ples. Is almost the only action for trying titles to lands in Pennsylvania. C. 178. 1 Dallas, § 13. Held, the court will not suffer a lessee to defend alone, on ejectment against his own landlord, or those claim- 2 W.BI. 1259. ing under him, on a supposed defect of title; as where John 67, Driver Harrison, June 28, 1732, devised to his wife Ann, for life, v. Lawrence. remainder to Mary Pembrook for life, remainder to his grand-daughter Ann Pembrook in tail, remainder to devisor's own right heirs: life estates ended, and Ann Pembrook married to David Lance, being in possession, they levied a fine 1752, to their use. She died March 1753, not leaving any issue, and July, 1753, D. Lance leased to the deft's. father for eleven years, he paid rent to Lance, who died November 17, 1772. Deft. paid to the pli's. lessors claiming under Lance's will to October 10, 1772, afterwards refused, being forbid by J. and W. Harrison's heirs of the first testator, who claimed the estate but made no entry to avoid the fine. Harrison's heirs should have been made defts. 1 D. & E. § 14. In an action to recover mortgaged premises, the mortgagor cannot set up a third person's title against the 759, note. mortgagee, nor the tenant that of such person, to bar or defend against his lessor. § 15. A, the owner of the lands, contracts with B, and he 1 Johns. Ca. under this contract makes improvements; A's devisee brings Allen v. Rog231, Van an action to recover them, and well secured; and B has no ers-Doe v. defence, but must look for recompense to A's personal re- Stanton. presentative. And 2 Phil. Evid. 170; 2 Barn. & Ald. 371; Goodright v. Rich, 7 D. & E. 334. v. Sisson § 16. In ejectment to recover lands, the tenant cannot de- 2 Johns. Cas. fend on an equitable title against the plt's. legal title, espe- 321, Jackson cially if such equitable title be doubtful. And 2 Johns. R. See Ch. 125, 221, Jackson v. Peirce; 3 Johns. R. 424; 8 Johns. R. 487, a. 4. Jackson v. Van Slyck. v. Hudson. § 17. If the deft. in ejectment defend on an outstanding 3 Johns. R. title, it must be a present subsisting and operating one; if 375, Jackson not, the presumption is, that such a title in a stranger has been extinguished; and such a title in certain Indians of the Mohawk tribe was so held, as it had never been claimed, and the tribe had become extinct. Nor is the possession of the native Indians, such an adverse possession as will render subsequent alienations by patentees of the land possessed by them, void, on the ground of maintenance. Harder. Nor will a mere intruder on land be allowed to defend on 4 Johns. R. such a title in a stranger to protect such intruder's possession: 202, Jackson nor can such a title be set up where there has been an adverse possession twenty years; and a title which could not be set up by a person while in possession of land, cannot be CH. 178. 2 Johns. Cas. 353, Jackson 2. Cuerden. 3 Johns. Cas. *. Wilson. set up by another person's coming into possession under him. A parol partition actually executed is binding. § 18. B, the supposed owner of the land, permitted A to occupy it many years; he afterwards applied to C, as the true owner, to purchase of him, and requested to be considered his tenant. C brought ejectment against A, to recover the land; held, he might defend by shewing he applied to C by mistake, and to prove the title not in C, though A could not set up an adverse possession. §19. 1786, the landlord in ejectment against his tenant, 295, Jackson holding under a lease containing a clause of re-entry for nonpayment of rent, recovered judgment against the casual ejector by default, under the statute, and possession thereon delivered to the landlord, who leased and gave possession to another tenant, and the first tenant, in 1790, brought ejectment against this second tenant for the same premises. Held, the judgment by default was prima facie evidence of a regular and sufficient bar. 4 Johns. R. T. Bard. § 20. A took possession of land on an agreement with B, 230, Jackson for a purchase, and C afterwards took possession under an agreement with A, for a purchase. Held, C's possession was not adverse to B's title. Where the possessor's declarations are evidence against him. 4 Johns. R. v. Schoonmaker.-7 East, 311, 312, 319. -1 Caines' § 21. The court in this case decided, that neither a de390, Jackson scent cast, nor the act of limitations, will bar or affect the right of him in remainder or reversion, while the particular estate continues; nor can the acts or laches of the tenant in possession affect the party entitled in remainder; (but the remainder must not be contingent, or if it be so, such act must not put an end to the particular estate.) Adverse possession twenty years or more, of a part of a lot, claiming the whole, is a bar in ejectment. R. 159, Jack son v.Bowen. 4 Johns. R. Jackson v. 6 Johns. R. 34, Jackson v. Stewart. In ejectment after judgment by default against the casual ejector, the landlord may be let in to appear and defend the action; and if an alien, when let in to defend, he is in time to petition to remove his cause into the Court of the United States. And if actions of ejectment, after judgment by default against the casual ejector, are removed into the Circuit Court of the United States, the state court will stay all further proceedings on such judgment until further order of the court. Default set aside to let in the merit. § 22. If A enter into possession of lands under B, and acknowledges his title, he never can set up in his defence in ejectment against him, an outstanding title in a third person. § 23. In ejectment against a purchaser of lands under 361, Jackson sheriff's sale, the regularity of the execution cannot be ques 8 Johns. R. v. Bartlett. tioned. § 24. Ejectment against five defts., they all pleaded and CH. 178. defended jointly; evidence two of them occupied distinct Art. 23. parcels of the premises in severally, and the other three pos v. Hazen. sessed the residue of the premises jointly. Held the pit. 2 Johns. R. was bound to prove a joint possession of all the defts. And 438, Jackson the two had judgment against the plt. Quare, if they had pleaded according to their claims? § 25. The plt. claiming to recover on the ground of pos- 3 Johns. R. session, must prove it clearly and unequivocally. The pay- 388, Jackson ment of taxes and the execution of partition deeds are not. Mayer. evidence of actual possession, though of a claim of possession. § 26. The plt's. lessor cannot be a witness; evidence of the 4 Johns. R. acts of the lessor tending to conclude him, and those deriving 140, 143, title under him, is admissible; may strike out his name if used without his consent. Jackson v. Ogden. Burtis. § 27. If the plt. in ejectment rest on a right by descent cast, 6 Johns. R. so as to toll entry, he must prove a tortious entry, and expulsion 197, Smith v. of the true owner, or that the entry was not congeable. If not such, it has no effect; a mere entry is no disseizin. v. Brown. § 28. In ejectment, if the plt. rely only on a judgment of 3 Johns. R. partition, and that is void, he cannot recover his undivided 459, Jackson share, without making out a regular title, as if no judgment had been given. If one tenant in common sell to A., he must have notice of partition. § 29. If the deft. claim under A, and A confesses he went 3 Johns. R. into possession under the plt's. lessor, the deft's. defence en- 499, Jackson tirely fails him as to the tenancy. v. Scissam. $30. Held in this case, that the rules as to the proceedings 1 Johns. Cas. in ejectment as for vacant possessions in England, do not ap- 221, Saltonply to the unsettled lands of New York. § 31. In ejectment, one having no claim, or any subsisting title to the lands in question, cannot be made lessor; but the person made lessor must have some claim or subsisting title to the premises: may be struck out. 10 Johns. R. 368. § 32. A sheriff's deed which did not recite the record, was 1 allowed to be given in evidence of title without producing the record. Though many of these cases in this article do not properly contain pleas in bar, yet as they contain a mixture of law and fact, they embrace matters useful to be attended to in land actions and matters. A deft. may often plead specially, if he chooses, especially by giving colour so as to bring matters involving real questions of law to be decided. by the judges instead of the jury. § 33. Selwyn justly observed, that "special pleas either in bar or abatement are seldom pleaded in" ejectment, "because, according to modern practice, if the deft. appears, he generally enters into the consent rule, by the terms of stall v. White. 4 Johns. R. 483, Jackson v. Richmond. Dallas, 94, Burke's Les see v. Ryan. 2 Selw. 650. Art. 23. CH. 178. which he is bound to plead the general issue, not guilty." And, as in England, and those of our States which adopt the English practice in regard to land actions, most land titles are tried in actions of ejectment; we see the reasons why so very few special pleas are to be found in our law books in real or land actions. § 34. Further the deft's. main ground of defence is in this; in this action of ejectment, to wit, that the right of entry of the party claiming title, or a right to recover the land, is tolled or taken away. This is matter almost invariably in evidence. And then as soon as the tenant of the land, or he and his landlord, are made defts. on their request, the parties in ejectment, ('ease, entry, and ouster being confessed) come at once to the inquiry, if the plt's. lessor had this right of entry at the time he really enters, to avoid a fine, as is necessary, or at the time it is admitted he entered. Now this inquiry, if the plt's. lessor so had this right of entry, involves many important matters, but not any special pleadings; this right of entry in the plt's. lessor may never in fact have existed; he may be totally mistaken in thinking he has, or had, the title or right of entry, or if he once had it, the same may be taken away in divers ways,-as by descent of the estate, by discontinuance, by fine and non-claim, or by the statute of limitations as to real actions in England, or here by descent, discontinuance, or this statute. But these matters are in evidence on the general issue, and have been, and will be, considered under the heads of Discontinuance, Entry, and Possession, Ch. 132, a. 2, 3, 4, &c. Limitations are considered. §35. As every man is in possession of land according to his title, in contemplation of law, until he is ousted or disseized, till one of these happen, he can have no occassion to make a formal entry. Hence, his right to enter will commence not until he is turned out of the land, or until he is adversely kept out by one holding it, and denying his title; hence, the twenty years is to be computed from such ouster or disseizen, or adversely holding him out. This involves, in the action of ejectment and so in applying statutes of limitations in other actions, the inquiry often, what is an ouster or disseizin, or such holding out; these have been already considered. 3 Day's Ca. 4 § 36. In Connecticut, actual ouster and adverse possession, 2. Wilcox & uninterrupted for fifteen years, bars the original proprietor of his right of entry, whether the adverse possession were by the same person or persons for the whole term, or by different persons for different portions of it. 256, Fanning al. § 37. A rightful title is not necessary to constitute adverse possession; though it must be a possession under colour and claim of title, and exclusively of any other right; and if A |