1818. Robinson states the question in the broadest terms; and if the decisions had then gone the Campbell, whole length, he would certainly have so stated. Nor is there any subsequent case in England in which the point has been decided. The case of Doe v. Reade, 8 East. 353. turned upon the circumstance that the defendant, being lawfully in possession, might defend himself upon his title, though twenty years had run against him before he took possession, the plaintiff in ejectment not claining under the prior adverse' possession; and the case of Goodtitle v. Balwin, 11 East. 438. turned upon 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. 62. So in an ejectment by a cestuy que trust the tenant may set up in his defence the legal outstanding title in the trustee. Doe v. Staples, 2 T. R. 681. For in all these cases the evidence shows that the plaintiff has no subsisting pos sessory title at law, and therefore, 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 æquali jure melior est conditio possidentis; he that hath possession of lands, though it be by disscisin, hath a right against all men but against him that hath right." Doct. & Stud. 9. 3 Shep Abr. 26. and the rule of the civil law is the same. Non possesserio incumbit necessitas probandi possessiones ad se pertinere, Cod.lib. 4 cited 2 Bro. Adm. & Civ. 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 recovery 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 entered 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 priority of possession, and no title was found for the defendant, 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 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 last case, 4 Johns. Rep. 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 authorities were reviewed, and it was held that it is not necessary for the plaintiff in ejectment to show, in every case, a possession of twenty years, or 1818. a paper title; that a possession dant who has no privity with Robinson V. for a less period will form a presumption of title sufficient Campbell. to put the tenant upon his defence; and that a prior possession short of twenty years, under a claim, or assertion of right, will prevail over a subsequent possession of less than 20 years, when no other evidence of title appears on either side. In respect to real actions, it is said by Chief Justice Parsons, that under the general issue the defendant cannot give in evidence a title under which he does not claim, unless it be to rebut the demandant's evidence of seisin; but that he may plead in bar a conveyance by the demandant to a third person, under whom he does not claim; for if tenant have no 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. Mew Rep. 418. Gould v. 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 simple 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 if 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 subsisting superior title to defeat. 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 subject to judicial doubt.. 1818. Dunlop V. (CHANCERY.) DUNLOP V. HEPBURN, et al. Explanation of the decree in this cause, (reported ante, Vol. I. 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. Hepburn. Mr. Justice WASHINGTON delivered the opinion of Feb. 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. Unit. States profits of the said land in its untenantable situation from the said 27th day of March, 1809, to the 27th day of March, 1816, with due care would be equal to 150 crates. 2077 60 dollars." V. 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. (INSTANCE COURT.) THE UNITED STATES V. 150 CRATES OF Libel for a forfeiture of goods imported, and alleged to have been in voiced 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 |