titled, and to eject all other persons therefrom: these PLAINTIFFS are to will and command you or such of you as deny the alleged title, within sixteen days after service hereof to appear in our Court of, to defend the said property, or such part thereof as you may be advised; in default whereof judgment may be signed, and you turned out of possession" (i).

Legal Right. The plaintiff or claimant in an action of Legal right. ejectment must (k) have a legal right, and a legal title is sufficient, notwithstanding that the defendant has an equitable title (1). Hence, where the legal estate is vested in trustees, as where A. holds land in trust for M., the action should be brought in the name of A. (m). So if M. is a mortgagor, and A. a mortgagee, A.'s name should be used in suing X. If an action is brought by the trustee, A., a lease from the cestui que trust, M., cannot be set up against the trustee in any case without the aid of a court of equity (n), and an equitable defence cannot be pleaded in ejectment (o). As, generally speaking, a merely equitable title to the land is not sufficient to support an ejectment (p), the person who has the legal estate, e. g., a mortgagee, may often bring ejectment against the person who has the equitable estate, e. g., the mortgagor. Thus, a mortgagor who remains in possession after the execution of a mortgage containing no proviso or stipulation amounting in law to a re-demise, is not considered as a tenant from year to year to the mortgagee, nor even as a tenant at will. He is at most a tenant at sufferance, and may be treated

(i) C. L. P. Act, 1852, Sch. A., No. 13.

(k) See Rule 3, and see pp. 41, 43.

(1) Doe d. Hughes v. Jones, 9 M. & W. 372, 377; 1 Dowl. N. S. 352; Fenny d. Eastham v. Child, 2 M. & S. 255.

(m) It may, however, be convenient to join the name of X.,

be done in action of ejectment, see p. 493, post.

which can

(n) Baker v. Mellish, 10 Ves. 554; Doe d. Davies v. Evans, 9 M. &

W. 48.

(0) Neave v. Avery, 16 C. B. 328; 24 L. J. 207, C. P.

(p) See Cole, Ejectment, 73.

PLAINTIFFS either as a tenant or as a trespasser, at the election of the mortgagee, who may maintain ejectment against him without any previous notice to quit or demand of possession (q). The question as to a mortgagee's right to bring ejectment against a mortgagor, or vice versa, depends upon the interest left in the mortgagor. If he stands in the position of a tenant to the mortgagee, as he generally does, he cannot be sued in ejectment until the tenancy be terminated by his default, or otherwise (r); and if he be in the position of a tenant, he has the same right to sue the mortgagee if the latter turns him out of possession, as every tenant has to sue his landlord if the latter dispossesses him during the tenancy, since the landlord does not, during the tenancy, possess the right of entry.

Right of

entry.

Though a merely equitable title is not sufficient to support ejectment, a title by estoppel will sometimes do as against a tenant or other person subject to the estoppel (s). A cestui que trust, for example, may sometimes sue with success where the defendant, e. g., as being his tenant, cannot deny that the plaintiff has a legal right (t).

Right of Entry.-The right to enter into and take possession of the land is the foundation of an action of ejectment. Anything which shows that this right does not exist in the plaintiff is fatal to his success, and the plaintiff must further possess this right in virtue of, or incident to, some estate or interest.

The right must be a right to the actual possession of the property. A right to the rent is not sufficient (u), the remedy in such case being by distress (x), or an action for rent (y). The right to enter must be imme

(q) Cole, Ejectment, 462; and see Ibid., 462- 82, as to actions by mortgagee and by mortgagor.

(r) See C. L. P. Act, 1852, ss. 219-220, for special provisions for the protection of mortgagors.

(s) Doe d. Harvey v. Francis, 4 M. & W. 331; 7 D. P. C. 193.

(t) Cole, Ejectment, 73.

(u) Doe d. Costa v. Wharton, 8 T. R. 2; Hill v. Saunders, 2 Bing. 112.

(x) Moss v. Gallimore, 1 Doug. 279.

(y) Voller v. Carter, 4 E. & B. 173.

489

diate; that is to say, if A. lets land to B., he cannot PLAINTIFFS bring an action of ejectment against X. during the continuance of the tenancy. A reversion or future estate is not sufficient to support ejectment, unless coupled with some forfeiture or defeasance of the previous estate in possession (z). But after the expiration of a term or other estate, the immediate remainder or reversion becomes an estate in possession, and will warrant an actual entry. A., for example, lets land to B., B.'s tenancy determines, and X. after this enters and takes possession, A. may then sue X. An outstanding term is therefore sufficient to defeat an action of ejectment, and even a mere tenancy from year to year, implied from proof of payment of rent, and not shown to have been duly determined by a notice to quit or otherwise, is sufficient to defeat an ejectment, although the defendant does not pretend to derive any title through or under such tenants, or to defend on their behalf (a), unless, indeed, he be estopped from setting up such outstanding tenancy (b).

; that is to say,

Right

must exist

from date

in writ.

The plaintiff may claim in the writ to have been entitled on and since the day of he may claim to have had a right of entry, and therefore mentioned to have been injured by the defendant's keeping possession on and from any day prior to the issue of the writ which he chooses to name. The plaintiff gains some advantages by placing his title as early as possible, but the doing so involves this disadvantage, that if a plaintiff claim to have been entitled on and since a specified day, he must prove the right of possession to have been in him on that day, and thence until the commencement of the action, whereas the right of possession may have accrued after that date and before action brought, either by the expiration of a notice to quit or by a demand

(z) Doe d. Wilson v. Phillips, 2 Bing. 13; Doe d. Wilson v. Abel, 2 M. & S. 541.

(a) Doe d. Wawn v. Horn, 3 M. & W. 333.

(b) See Cole, Ejectment, 288, 289. Compare the rules as to the person to bring trespass, pp. 333-339, ante.

PLAINTIFFS of possession, or from some other circumstance (e). A.

Plaintiff remitted

to previous estate.

brings ejectment against X., his tenant, having given him notice to quit on the 1st of January, such notice expiring, e. g., on the 25th of March. Ejectment is brought on the 26th of March. If A. simply claims to be entitled, he will succeed, since he has a right to enter on the 26th. If he claims to be entitled on and from the 1st of January, he will fail, since he cannot show a right of entry on that day (f).

Plaintiff after entry remitted to his previous estate.— The plaintiff, on being put in possession of land, does not obtain any title other than that which he before possessed. He is remitted to his previous estate; that is to say, he becomes seised or possessed of the land for such an estate therein as was legally vested in him before and at the time of his entry. "If he has a freehold, he is in as a freeholder; if he has a chattel interest, he is in as a termor; and in respect of the freehold, his possession enures according to right. If he has no title, he is in as a trespasser, and, without any re-entry by the true owner, is liable to account for the profits" (g). His main advantage is, that on being lawfully in possession, he can put any other claimant who wishes to turn him out, to the proof of title on the claimant's part.

In applying the principle that a person in possession can put all others to the proof of their title, it is necessary to bear in mind the distinction between occupation and possession, and that the person relying on his rights as possessor, must be not only in occupation but in legal possession. If, for example, X. enters into the house of

(e) Cole, Ejectment, 94-95.

(ƒ) Though an ejectment depends upon a right of entry, "an ejectment for non-payment of rent may sometimes be maintained under 15 & 16 Vict. c. 76 (Common Law Procedure Act, 1852), s. 210, where an entry without previous ejectment would not be lawful, no demand of payment having been duly made according to the provisions of the common law." Cole, Ejectment, 69.

(g) Taylor d. Atkyns v. Horde, 1 Burr. 114, per Curiam; see Doe d. Daniel v. Woodroffe, 2 H. L. 811.

A. without any title, he cannot, simply from his being in PLAINTIFFS the house, claim the rights of a possessor. If the question is, which of two persons is in possession, that person must be considered to be so who has the title, or, in other words, the right to the possession. "If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of these two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser. They differ in no other respect. You cannot say that it is a joint possession; you cannot say it is a possession as tenants in common. It cannot be denied that one is in possession, and the other is a trespasser. Then that is to be determined, as it seems to me, by the fact of the title, each having the same apparent actual possession. The question as to which of the two really is in possession is determined by the fact of the possession following the title; that is, by the law, which makes it follow the title " (i). If, again, X. has entered into occupation as the tenant or by the permission of A., he cannot set up his possession against the claims of A.; since in such a case the possession of X. is the possession of A., who, in a legal point of view, has never been out of possession.

Persons bring

who may

Particular persons who may bring Ejectment.-As ejectment may be brought by any person legally entitled to enter upon land, it may be brought by partners, by a cor- ejectment. poration (1), by an infant (m) or an infant's guardian (n), by a husband and wife (o), by a bankrupt's Trustee (p),

and by personal representatives (q).

(i) Jones v. Chapman, 2 Exch. 820-821, judgment of Maule, J.

(1) 1 Selwyn, N. P., 13th ed., 624.

(m) Ibid.; Cole, Ejectment, 584-585.

(n) Ibid., 583.

(0) Doe d. Hellings v. Bird, 11 East, 49.

(p) Bankruptcy Act, 1869, s. 415, and s. 22.

(q) See p. 493, post.