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fend himself upon his title, though twenty years had run against him before he took possession, the plaintiff in ejectment not claiming under the prior adverse' possession; and the case of Goodtitle v. Balwin, 11 East. 488. turned upon the distinction, that the premises were crown lands, which by statute could not be granted, and that the possession of the plaintiff and defendant was to be presumed by the license of the crown,

Undoubtedly the plaintiff must show that he has a good possessory title; and, therefore if the defendant shows that he has conveyed the land, unless, the conveyance was void by reason of a prior disseisin, the

plaintiff cannot recover.

Gould v. Newman, 6 Mass.

Rep. 239. Wolcott v. Knight

6 Mass. Rep., 418. Everenden v. Beaumont, 7 Mass. Rep. 76. Williams v. Jackson, 5 Johns. Rep. 489. Phelps v. Sage, 2 Day's Rep. 151. So a tenant may show that the title of his landlord has expired. England v. Slade, 4 T. R. 682. So in an ejectment by a cestwy que trust the tenant may set up in his defence tho legal outstanding title in the trustee. Doe v. Staples, 2 T. R. 68.1. For in all these cases the evidence shows that the plaintiff has no subsisting pos.

sessory title at law, and there

fore, he ought not to be permitted to disturb the tenant's possession. The general rule is, that possession constitutes a sufficient title against every person not having a better title ; and therefore the tenant may stand upon his mere naked possession until a better title is

shown. “In aequalijure melior

est conditio possidentis; he that hath possession of lands, though it be by disseisin, hath a right againstallmen but against him that hath right.” Doct. 4. Stud. 9. 3 Shop Abr. 26. and the rule of the civil law is the same. Non possesserio incumbit necessitas probandi possessiones adse pertinere, Cod.lib.

Saunders says, the matter in law was never argued, for the priority of possession alone gives a good title to the lessor of the plaintiff against the defendant, and all the world, excepting against the rightful owner. And in a late case, it was held, that mere prior occupancy of land, however recent, gives a good title to the occupier, whereupon he may

, recover, as plaintiff, against all

4 cited 2 Bro. Adm. 3 Cir.
Law, 371. note. And possess-
sion, although it be merely a
naked possession, or acquired
by wrong, as by disseisen, is
also a title upon which a re-
covery can be had. For as
Blackstone justly observes, “in
the mean time, till some act
be done by the rightful owner
to devest the possession and
assert his title, such actual
possession is prima facie ev-
idence of a legal title in the
possession ; and it may, by
length of time aud negligence
of him who hath the right, by
degrees ripen into a perfect
and indefeasible title.” 2 Bl.
Com. 196. So Jenkins, in his
Centuries of Reports, (42.)
states that the first possession
without any other title, serves
in an assize for land. In Bate-
man v. Allen, Cro. Eliz. 437,it
was held that the plaintiff was
entitled to recover in ejectment
where it was found by special
verdict that the defendant had
not the first possession, nor en-
tered under title, but upon the
plaintiff's possession. And in
Allen v. Rivington, 2 Saun. R.
111, where, upon a special
verdict in ejectment, it appear-
ed that the plaintiff had a pri-
ority ofpossession, and no title
was found for the defendant,

the world, except such as can
prove an older and better title
in themselves. Catteris v.
Cooper, 4 Taunt. 547. See
also, 8 East. 353. And this
doctrine has been frequently
recognized in the American
courts. Jackson v. Hazen, 2
Johns. Rep. 22. Jackson v.
Harder, 4 Johns. Rep. 202.
The iast case, 4 Johns. Rep.

1818. *~~ Robinson

w. Campbell.

202. goes farther, and decides

that a mere intruder upon
lands shall not be permitted to
protect his intrusion in a suit
by the person upon whom he
has intruded, by setting up an
outstanding title in a stranger.
And in Smith v. Lorillard, 10
Johns. Rep. 338. all the au-
thoritics were reviewed, and it
was held that it is not neces-
sary for the plaintiff in eject-
ment to show, in every case, a
possession of twenty years, or

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right, yet if the demandant have no right, he cannot, in law, draw into question the tenant's seisin, whether acquired by right or by wrong. Wolcott v. Knight, 6 Mass. Rep. 418. Gould v. Mewman, 6 Mass. Rep. 239.

It is remarkable that in none of the foregoing cases the point is stated to have been ever decided upon the naked question whether a better sub

sisting title in a third person can

dant who has no privity with that.title, to defeat a title in the plaintiff which is yet superior to that under which the defendant holds the land. Blackstone puts a case in point: “If tenant in tail enfeoffs A. in fee simpl" and dies, and B. disseizes A., now, B.will have the possession, A. the right of possession, and the issue in tail the right of property. A. may recover the possession against B. and afterwards the issue in tail may evict A., and unite in himself the possession, the right of possession, and also the right of property.” 2 Bl. Com. 199. Here B. is an intruder, and, therefore, comes within the reach of the case of Jackson v. Harder, 4 Johns. Rep. 202. But is B. had conveyed to C., and then A., had brought an ejectment against C., could the latter have set up the title of the issue in tail, with which he had no privity

although that were a good sub

sisting superior title to deseat the recovery of A.? It becomes not the annotator to express any opinion on this point ; his only object is to bring the authorities in review before the learned reader, and to suggest that it may be considered as

be given in evidence by a defen- subject to judicial doubt..

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(CHANce RY.)

DUNLop v. HEPE URN, et al.

Explanation of the decree in this cause, (reported ante, Vol. 1. p. 719. that the defendants were only to be accountable for the rents and profits of the lands, referred to in the proceedings, actually received by them.

APPEAL frow the circuit court for the district of Columbia.

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Mr. Justice WAshingtoN delivered the opinion of F.E. 24th.

the court. By the decree of this court made in this cause at February term, 1816, the defendants were ordered “to make up, state, and settle, before a commissioner or commissioners to be appointed by the circuit court of the district of Columbia for the county of Alexandria, an account of the rents and profits of the tract of land referred to in the proceedings, since the 27th day of March, 1809, and that they pay over the same to the complainants, John Dunlop & Co., or to their lawful agent or attorney.” The commissioners appointed by the circuit court to execute this part of the decree of this court made a report, in which they state, “that it did not appear to them that the said William Hepburn and John Dundas, or the legal representatives of the said Dundas, ever received any rents or profits of the land from the 27th day of March, 1809, until the

date of the report; but that the reasonable rents and

1818. profits of the said land in its untenantable situation U. sole from the said 27th day of March, 1809, to the 27th day v. of March, 1816, with due care would be equal to 150 crates. 2077 60 dollars.” The cause coming on to be heard in the court below on this report, and that court being of opinion that under the decree of this court, the defendants were only to be accountable for the rents and profits actually received, it was decreed that the Bill, so far as it seeks a recovery of rents and profits, should be dismissed, from which decree an appeal was prayed to this court. I am instructed by the court to say, that the decree of the circuit is in strict conformity with the decree and

mandate of this court, and is therefore to be affirmed. Decree affirmed.

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THE UNITED STATEs v. 150 CRATEs of
EARTHEN WARE.

Libel for a forfeiture of goods imported, and alleged to have been invoiced at a less sum than the actual cost at the place of exportation, with design to evade the duties, contrary to the 66th section of the collection law, ch. 128. Restitution decreed upon the evidence as to the cost of the goods at the place where they were last shipped; the form of the libel excluding all inquiry as to their cost at the place where they were originally shipped, and as to the continuity of voy

age.

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