| N.C. | Jun 5, 1813
The operation of the consent rule raises the doubt in this case; for, very clearly, without it the plaintiff would be bound to prove the ouster, as a material allegation in his declaration. It becomes, therefore, necessary to examine the extent of the admissions made by the tenant by entering into the rule. The confession has never been deemed to acknowledge that which is the substance of the action, as when *203 the plaintiff's entry is necessary to complete his title, as an entry to avoid a fine or the like; there an actual entry must be shown. The ouster confesses an expulsion from some lands, but whether they are the lands mentioned in the declaration or those which are in the defendant's possession, creates the difficulty.
Taking the whole record together, it would seem that they are the latter. The plaintiff, either by name or boundary, gives a description in his declaration of the lands sued for. This declaration he causes to be served on the tenant in possession; for none but the tenant or his landlord can be (284) made defendant. This is, in substance, saying to the tenant that you are in possession of the lands described in the declaration; that whatever description I may have given of them, either by name or boundary, they are the same lands that you possess. On which the tenant confesses that he ousted the plaintiff from the lands, and relies on his title as a justification. Should it appear at the trial that the defendant's possession did not interfere with the plaintiff's claim, it is but just that the mischief should be borne by the plaintiff, who has misled the defendant, rather than by the defendant, who has trusted to the plaintiff's assertion. Should it be otherwise, yet the defendant would be compelled to decide at his peril whether the lands described in the declaration are those possessed by him, although he is told so by the plaintiff; and this, too, where the plaintiff describes by artificial boundaries, the beginning and extent of which may be entirely unknown to the defendant. The practice of disclaimer shows the difficulties to which the defendant was driven; but this carried the remedy too far. By this means an action commenced on proper grounds would be defeated by disclaiming the very lands which were the cause principally of the suit, and defending as to others to which his title was good. Or if the plaintiff, after the disclaimer, should dismiss his suit, he must pay the defendant his costs. Whereas, if the tenant had declined to defend, there would be no costs due to the casual ejector, but only the plaintiff's own costs to be paid. Nor can the Court so regulate the disclaimer as not to produce this inquiry, as some have alleged, by preventing the defendant from disclaiming lands which he had possessed; for the Court has no proper mode of ascertaining this fact; and to settle this preliminary point, if it had, would increase litigation and delay and incur unnecessary expense. A contrary practice would also enable two designing men more easily (285) to convert the action of ejectment to the means of getting possession of lands, without making the actual tenant a *204 defendant or apprising him of the suit. For these reasons we think, in all cases, whether the consent rule be general or special, the plaintiff is bound to prove the possession of the defendant. In the case in 7 Term, 327, the question was fully considered, and the unanimous opinion of the Court given of the law as here laid down. The case in Willson, 220, is also an authority, although in that case the landlord defended, for he certainly was placed in his tenant's situation.