204; Child v. Chappell, 9 N. Y. [5 Seld.] 246); nor can the public maintain such action against one who sets up a stall in a public street. Doe d. Overseers of Poor, etc., v. Cowley, 1 C. & P. 123.

Under the Pennsylvania statute it has been held that the action will not lie in favor of a widow, to recover her interest in lands of which her husband died seized; nor by a husband in his own name, to recover lands the title of which he claims in right of his wife (Bratton v. Mitchell, 7 Watts, 113); nor to recover a life estate after the death of the life tenant (Hamilton v. Whiteley Township, 12 Penn. St. 147); nor to compel the support of a testator's widow, charged upon land devised to his son (Craven v. Bleakney, 9 Watts, .19); nor to recover a legacy charged upon land.

Although the performance of a contract for the purchase of land may be specifically enforced in an action of ejectment in that State, yet, where a conveyance has been made and a bond taken for the purchase-money, the payment of such purchase-money cannot be enforced in that action. Megargel v. Saul, 3 Whart. 19.

ARTICLE IV.

WHAT TITLE OR POSSESSION REQUISITE TO MAINTAINING THE ACTION.

Section 1. In general. At common law, the party in possession of real estate is presumed to have a valid title thereto, until the contrary is proved. He is so far regarded by law as the owner, that no one can lawfully dispossess him without showing some well-founded title of a higher and better character than such possession furnishes. Some authorities hold that possession is prima facie evidence of seizin in fee (Kane v. Cannovan, 21 Cal. 291; Hutchinson v. Perley, 4 id. 33; Robinoe v. Doe, 6 Blackf. 85); but, inasmuch as possession is just as consistent with a lesser interest, such as one for years or for life, as with a fee, this doctrine needs to be so qualified that the presumption shall not extend beyond the right or interest claimed by the party in possession. When the extent of his claim is ascertained by reference to his declarations or acts, his possession may be resorted to as evidence to sustain it. Adams v. Guice, 30 Miss. 397; Ricard v. Williams, 7 Wheat. 59; Jackson v. Porter, 1 Paine, 457.

This presumption makes it necessary for the party who is out of possession and seeks to regain it, to show a good and sufficient title in himself. What that title shall be is also fixed by the common law, in entire consistency with the theory that the action is simply and only a legal one. Its rule is that the plaintiff must have a legal title, not a mere equitable one, to the premises claimed, and must also have a

right of entry or of possession at the time of the demise laid or the commencement of his suit, and at the time of the trial. Adams on Eject. 32; Smith v. McCann, 24 How. (U. S.) 398; McCool v. Smith, 1 Black (U. S.), 459; Schrack v. Zubler, 34 Penn. St. 38; O'Connell v. Dougherty, 32 Cal. 458.

A departure from the theory of the action necessarily involves a modification of the rule, as will appear hereafter.

The rule of the common law still prevails in a majority of the American States, though the language employed by their statutes in announcing it varies in the different States. In some, the terms used are, a legal title and right of possession;" in others, "an estate of freehold in fee simple, fee tail, or for life," or "a title in fee, for life or years;" and in others still, “a valid subsisting interest and right of possession;" but these all, as applied by the courts, resolve themselves into the title and right required by the common law. Allen v. Smith, 6 Blackf. 527; Eaton v. Smith, 19 Wis. 537; Leonard v. Diamond, 31 Md. 536; Mulford v. Tunis, 35 N. J. L. 256; Dyer v. Day, 61 Ill. 336; Beach v. Beach, 20 Vt. 83; Thompson v. Adams, 55 Penn. St. 479; Daniel v. Lefevre, 19 Ark. 201.

The action of ejectment is a possessory one, and is founded upon the principle that the defendant in possession is a wrong-doer in withholding the premises from the plaintiff; and unless he is so at the time the latter brings his action, it cannot be sustained. A present right of possession in the plaintiff is, therefore, essential. Cincinnati v. White, 6 Peters, 431; Heffner v. Betts, 32 Penn. St. 376; Payne v. Treadwell, 5 Cal. 310. He must have it at the commencement of the suit (Kile v. Tubbs, 32 Cal. 332); and also at the time of trial (Cresap v. Hutson, 9 Gill, 269; Alden v. Grove, 18 Penn. St. 377; Torrance v. Betsy, 30 Miss. 129); though it is held in Vermont that his being divested of title during a portion of the intervening period by his own act will not prevent his recovery. Edgerton v. Clark, 20 Vt. 264. In Connecticut a right of possession derived from the holder of the legal title is sufficient. Law v. Wilson, 2 Root, 102.

The effect of the statute 3 and 4 Wm. IV, ch. 27, is to reduce all land titles in England to possessory titles, and make the remedy by ejectment co-extensive with the right of recovery of possession as limited thereby.

By statute in the State of Texas the action can be maintained upon an equitable as upon a legal title. Browning v. Estes, 3 Tex. 462; Walker v. Howard, 34 id. 478. So, also, in the State of Kansas, where it is made sufficient for the claimant to allege that he has a legal or equitable estate and right of possession (Kansas, etc., R. R. Co. v. McBrat

ney, 12 Kan. 9); and in North Carolina, where it is held that the equitable owner of land may maintain an action for its recovery, although the legal estate is in his trustee. Murray v. Blackledge, 71 N. C. 492. An equitable title is also sufficient to sustain the action under the statutes of Pennsylvania. Willing v. Brown, 7 Serg. & R. 467; Peebles v. Reading, 8 id. 484. These variations from the ordinary rule in the former States are attributable to the introduction of equitable principles into legal actions, which is one of the most notable features of modern jurisprudence. In the latter State it is due to the fact that there is no court of chancery, and hence the law courts exercise jurisdiction and furnish relief in cases which elsewhere would belong to courts of equity. Swayze v. Burke, 12 Peters, 11; Henderson v. Hays, 2 Watts, 150.

2. Plaintiff must recover upon his title. It is a universal rule that the party claiming a right to lands must recover, if at all, on the strength of his own title, and not on the defects in that of his adversary. Adams on Eject. 30; Wallace v. Swinton, 64 N. Y. (19 Sick.) 188; Goulding v. Clark, 34 N. H. 148; Boylan v. Meeker, 4 Dutch. 274; Butler v. Davis, 5 Nebr. 52. Where neither party has the true title, the plaintiff's success in the action will depend upon his showing a better right than the defendant; and as between the two, he who shows a prior possession will be deemed to have the better right.

The presumption of title in the defendant arising from his possession must be overcome by proof of a title in the plaintiff, which is good at least against the defendant. Eldon v. Doe, 6 Blackf. 341; People v. Leonard, 11 Johns. 504; Sullivan v. Dimmitt, 34 Tex. 114; Douglass v. Libbey, 59 Me. 200; Tracy v. Norwich, etc., R. R. Co., 39 Conn. 382; Foster v. Evans, 51 Mo. 39; Farley v. Goocher, 11 Iowa, 570; Stehman v. Crull, 26 Ind. 436; Holbrook v. Nichol, 36 Ill. 161; Stanford v. Mangin, 30 Ga. 355; Millaudon v. Ranny, 18 La. Ann. 196. Even as against one in possession without title, the plaintiff must show some title in himself, or that the defendant is in under him. Perry v. Whipple, 38 Vt. 278. If he sues in the name or for the use of another, or the proof shows the legal title to be in another, he must connect himself with the title of such other, or he cannot recover. Ballance v. Flood, 52 Ill. 49; Brooking v. Dearmond, 27 Ga. 58; Adams v. McDonald, 29 id. 571.

In a suit by several plaintiffs, all must show a legal title and right to immediate possession of the premises, not only at the time the action was commenced, but also at the time of the trial and judgment. Cheney v. Cheney, 26 Vt. 606; Alden v. Grove, 18 Penn. St.

Neither a right of entry, as distinct from the right of property or of action, nor an actual entry, is now necessary, but it is sufficient if the plaintiff has such title as he claims and a right of possession. Adams on Eject. 34; Hylton's Lessee v. Brown, 1 Wash. C. C. 204. Even an equitable title is sufficient where, by the laws of the State, it gives a legal right of entry. Sims v. Irvine, 3 Dall. 425.

A title to land founded upon or traced back to a patent from the State as the original source of title is prima facie sufficient to support ejectment. Savory v. Whayland, 1 Harr. & McHen. 206; Hopkins v. Ward, 6 Munf. 38; Hull v. Campbell, 56 Penn. St. 154. In some of the States it has been held to be essential that the plaintiff should trace his title back to the government (Mitchell v. Mitchell, 1 Md. 44); or to some one who had the legal title, or who died seized of the premises, or who had twenty years' uninterrupted and exclusive possession (Brown v. Brown, 15 La. Ann. 169; Young v. Chamberlain, id. 454; Plummer v. Lane, 4 Harr. & McHen. 72); but, under the rule which prevails generally, such proof is not necessary, because the legal right of possession, and not the ultimate title to the land, is the subject of the controversy. Wood v. West, 1 Blackf. 133. The statement sometimes made, that the plaintiff must show a perfect title, is, therefore, too broad. Where his title is subsequent to the date of the defendant's possession, he cannot recover without showing a perfect title (Patterson v. Litton, 23 La. Ann. 274); but ordinarily his title need not be perfect against all the world. He must have a sound and sufficient title. (Fowler v. Nixon, 7 Heisk. 719), and one which is perfect as against the defendant (Yoe v. Dyer, 6 Heisk. 16); and that is sufficient. Garrett v. Lyle, 27 Ala. 586; Clark v. Diggs, 6 Ired. 159. He need not have a fee simple where the defendant has no title. Lewis v. Goguette, 3 Stew. & Port. 184. A presumptive title, or one which is subject to some defects, may be sufficient. Johnston v. Jackson, 70 Penn. St. 164; Campbell v. Fletcher, 37 Md. 430.

Unless the plaintiff shows a better title than the defendant he cannot recover (Kennedy v. Skeer, 3 Watts, 95; Jack v. Dougherty, id. 151); but where the parties claim under conflicting titles, and the only question is, which of the two is good, the best title must prevail. Busenius v. Coffee, 14 Cal. 91. A title which is apparently good is sufficient against a mere trespasser or wrong-doer. Zeringue v. Williams, 15 La. Ann. 76; Davison v. Gent, 38 Eng. L. & Eq. 469; 1 H. & N. 744.

A conditional fee is sufficient to support an ejectment before breach. Candee v. Burke, 1 Hun, 546; 4 N. Y. Sup. (T. & C.) 143. A title by estoppel is also sufficient (Stoddard v. Chambers, 2 How. [U. S.] 284);

or a title by descent from one who died seized. Smith v. Lorillard, 10 Johns. 338.

A deed by husband and wife of the wife's land conveys sufficient title to enable the grantee to maintain ejectment, although the acknowledgment of the wife be defective. Bryan v. Wear, 4 Mo. 106. A title based upon lost instruments will enable the holder to recover in the action, without first resorting to equity to prove the making and loss of such instruments. Donaldson v. Williams, 50 Mo. 407.

As a general rule, a devise or conveyance in trust gives the trustees the legal estate, and they may, therefore, maintain ejectment against any one in possession of the trust property, even though he be the cestui que trust. Cox v. Walker, 26 Me. 504; Goodtitle v. Jones, 7 Term R. 47; Beach v. Beach, 14 Vt. 28; Jackson v. Pierce, 2 Johns. 226; Mathews v. Ward, 10 Gill & Johns. 444, 456; Baker v. Nall, 59 Mo. 265; Mordecai v. Parker, 3 Dev. 426. As against a mere intruder, or one showing no title, it makes no difference whether the legal title is in the plaintiff absolutely or whether he holds it in trust. Lair v. Hunsicker, 28 Penn. St. 115.

At common law a trustee takes only that quantum of interest which is necessary to carry out the purposes of the trust, and is permitted by the terms of the instrument creating it; and when the execution of the trust no longer requires the existence of the legal estate in him, it vests in the person beneficially entitled. Jeffreson v. Morton, 2 Saund. 11; Doe v. Nicholls, 1 B. & C. 336; Doe v. Ewart, 7 A. & E. 636. Therefore, it is held that, after the purposes of the trust have been satisfied, the cestui que trust, if entitled to possession, may maintain ejectment, although the legal estate may yet remain in the trustee. Hopkins v. Ward, 6 Munf. 38. In Pennsylvania his equitable estate is sufficient to enable him to do so. Hunt v. Crawford, 3 Pen. & W. 426.

By statute in some of the States, unless some actual power of disposition or management of the property is conferred upon the trustees, they take no estate but it vests directly in the cestui que trust, and he is entitled to the possession and may sue therefor. A cestui que trust, who paid the consideration for the land, holds both the legal and equitable title. N. Hempstead v. Hempstead, 2 Wend. 109. But see, to the contrary, Moore v. Spellman, 5 Denio, 225, 231.

A bond for the conveyance of land gives sufficient title to sustain ejectment by the vendee, against a mere trespasser, without proof of compliance on his part with its conditions. Hooper v. Hall, 30 Tex.