1 Blackf. 133 | Ind. | 1821
In this case there was a judgment for the defen
it is often necessary for the plaintiff to show a right of property in order to establish a right of possession. In some instances he must show an estate in fee; in others a less estate is sufficient. But it is in all cases indispensable, that the plaintiff] show a clear legal right of possession in his lessor
The judgment is reversed, and the verdict set aside, with costs. Cause remanded for further proceedings.
Smith v. Allen, ante, p. 22, and note 1. — Jared v. Goodtitle, ante, p. 29.
A statute of limitations was enacted in 1820, but it had not taken effect when this case occurred. The law here now is, that an adverse possession of 20 years bars the action; except as to infants, femes covert, persons non compos mentis or beyond seas, who have five years further after the disability is removed. Stat. 1823, p. 166. Vide Eng. stat. 21 Jac. 1. Adamson Ejectment, 46.
So if the defendant can prove the real title to be in a third person, he bars the suit, without showing that he holds with the consent or under the authority of the owner. Bull. N. P. 110. — Runn. 343. — Adams, 29. — 1 Cruise R. P. 504. In a note to Robinson v. Campbell, 3 Wheat. 224, the reporter attempts to show that this rule is not supported by authority, and has collected a variety of authorities on the subject. The question, however, lately occurred in the Supreme Court U. S., when the following opinion was given: — On the implied proposition, that the better title might be set up as a shield against the plaintiff’s recovery in ejectment, even though the defendant does not show that better title in himself, we will limit ourselves to the following remarks: The rule of law, that aplaintiff must recover by the strength of his own title, and not the weakness of his adversary’s, must be limited and explained by the-nature of each case as it arises. Since the rule is universal, that a plaintiff in ejectment must show the right to possession to be in himself positively, and it is immaterial as to his right of recovery, whether it be out of the tenant or not, if it be not in himself, it follows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself. Possible difficulties may be suggested as to the application of this principle to mere tort-feasors or forcible disseisors; but besides that such cases, being generally provided for under statutes of forcible entry, must be of rare occurrence, it is time enough when they occur, to consider what exceptions they present to the general principle. Love v. Simms, 9 Wheat. 515, 523, 524.