26 Del. 78 | Del. Super. Ct. | 1911
charging the jury:
Gentlemen of the jury:—This is an action of ejectment, brought to recover possession of a narrow strip of land, situate in Baltimore Hundred, Sussex County, containing about three-fifths of an acre.
[1] The nominal plaintiff and defendant are fictitious. The claimant of the premises in dispute, Sallie T. Townsend, is the real plaintiff, and the occupant, Charles R. Melson, is the real defendant. Whenever an action of ejectment is brought, the occupant of the land in question is not permitted to come in and defend without first entering into what is known as the consent rule, which compels him to confess lease, entry and ouster, which need not be proved at the trial. If the consent rule is not entered into within the time prescribed by rule of court, the claimant may have judgment by default. But if the consent rule is properly entered into, the case then regularly proceeds to trial upon its merits.
[2] The defendant may enter into the rule either generally, confessing lease, entry and ouster as to all of the premises men
The plaintiff contends that for upwards of fifty years she and those under whom she claims held possession of the premises in question until about two years ago, when, she complains, the defendant changed the private road or way over the lands which,
The defendant in this case entered into the consent rule and confessed ouster and pleaded not guilty generally, and not specially by restricting his defense to a portion of the premises mentioned in the declaration. But at the beginning of this trial, after the jury had been sworn, he disclaimed any right of possession to that portion of the premises in dispute between the black dotted line and the purple line as shown on the plot. For this portion of the premises so disclaimed, we direct you to return a verdict for the plaintiff.
The defendant has defended only for that portion of the premises which lies between the purple and the red lines, and he contends that the plaintiff is not entitled to a verdict for the
We do not understand that the plaintiff now relies upon her paper title for the recovery of possession of any portion of the premises lying west of the purple line on the plot. But she relies upon an alleged continuous, adverse and exclusive possession by herself and those under whom she claims for at least twenty years.
[3] As to the portion of the premises lying between the purple and red lines, now under consideration, the defendant insists that the plaintiff and those under whom she claims have never had possession of any portion thereof, but that the possession of the same has always been in him and those under whom he claims. To entitle the plaintiff to a recovery of the possession of the premises not disclaimed by the defendant, it is necessary for her to satisfy you by a preponderance or greater weight of the evidence that she has the legal title thereto either by her paper title, in evidence, or that she and those under whom she claims had uninterrupted, adverse and exclusive possession of the same for at least twenty years prior to the commencement of this action. Your consideration of this case is confined to the premises in dispute lying between the purple and the red lines. Whether, as to this latter portion, your verdict should be for the plaintiff or for the defendant, we leave you to determine from all the evidence before you, considered in connection with the law of the case which we will now announce to you, so far as applicable, as was charged by this court in the case of Nevin v. Disharoon, 6 Penn. 278, 66 Atl. 362.
The plaintiff cannot recover the possession of the land on the west side of the purple line on the plot unless she shows her right to such possession, by proving her title to the same.
A legal title to lands may be proved (1) by proving or producing the deed, will, and descents under which said title is claimed, or (2) by proving that the claimant and those under whom he claims had adverse, exclusive and continuous posses
[4] The plaintiff in an action of ejectment must recover, if at all, on the strength of his own title, and it is not enough for such recovery that the defendant has failed to prove that he has a good title.
[5] In order to entitle the plaintiff to a verdict, the jury should be satisfied from the preponderance or greater weight of the evidence that the plaintiff has the legal title. It is not necessary, however, that the legal title of the plaintiff be proved beyond a reasonable doubt; it is sufficient if it be proved by the preponderance of the evidence.
[6] Exclusive, adverse and continuous possession for twenty years is ground upon which the law presumes a legal title.. But where the possession relied upon is for a less period than twenty years, or where it is of a mixed character, as where the possession has been shared with some other person or persons, no conclusive presumption arises as to the ownership of the legal title from such possession.
[7] The nature or kind of possession from which the law presumes legal title to real estate, depends in a great degree upon the nature and character of the property. Where the property is uninclosed, cutting wood or cultivating the land, and other similar acts are to be regarded as acts proving possession. But such acts must be exclusive and in opposition to the claims of all other persons, and continued for at least twenty years, in order to warrant an inference of title by possession only.
If it appears to the jury from the evidence that there was a mixed possession of the premises; that is, if acts of ownership have from time to time been exercised by both parties, or by those under whom they claim, the law adjudges the right of possession to be in that party who has shown a legal title.
You have in evidence the record of the paper title claimed by each party, and the evidence which, it is contended, identifies the disputed premises with the premises described in said record. You have also heard the testimony on behalf of each party as to
If you find that the plaintiff is not entitled to a verdict for-that portion of the premises lying between the red and purple lines, then your verdict should be for the plaintiff for the portion disclaimed by the defendant as we have instructed you, that is, that the defendant is guilty of the trespass and ejectment within laid to his charge in manner and form as within complained against him as to that portion in the plaintiff’sde claratipn mentioned, lying between the purple line and the black dotted line on the plot in evidence, and assess his damages at six cents, and six cents costs, besides the costs expended.
Verdict: “We find the defendant guilty of the trespass in ejectment in the said declaration mentioned in the manner and form as the said John Doe hath complained aginst him.”