
    *409] *John Den ex dem. Abraham Van Campen and others vs. Benjamin Depue.
    Without a notice to quit or demand of possession, an action cannot he maintained against a defendant who went into possession of the premises in question under the lessors of the plaintiff or their ancestors, and has remained many years in the possession, acknowledging from time to time the right of the lessors of the plaintiff, and setting up no claim adverse or hostile to themi paying no rent, but making more or less of useful improvements.
    Upon the trial of this action of ejectment before Justice-Drake, at the Warren Circuit Court, it appeared that the defendant had been in possession of the premises in question, for at least twenty-three years; that he entered lawfully under Abraham Van Campen and Moses Van Campen, the-■only evidence of whose right or title at that period, consisted in proof of their previous possession, by their tenants and in the acknowledgments of the defendant, tie had built a frame instead of a log house, erected fences, and cleared more or less of the land every year, for many years. Seven, ■eight or ten years before, he cut his firewt>od, without objection so far as appeared in the testimony. At one time not .specified, he cut saw logs, was forbidden by a son of one of the lessors of the plaintiff, and desisted. At another time, .not mentioned, he applied to the same lessor and his brother, -then living, for permission to cut timber. He paid no rent ■nor had he made a render of "any kind. He appeared to have possessed the premises without question or hindrance •until the spring of 1826, when, as one of the witnesses said, he offered and agreed to pay rent in fencing and building a barn, which were not done; but to whom this offer was made, and whether accepted or why declined was not testified. In April, 1827, Andrew Van Campen, acting on behalf •of his father, one of the lessors of the plaintiff, and of the other lessors, the children of James Van Campen, deceased, to whose estate he was administrator, told the defendant he ■ought to take a lease, that it was time it was done, he feared he would take some advantage. The defendant said he-was sorry the witness had such an opinion of him and finally ■concluded to come under a lease and sent to have one drawn. When informed it was ready, he came to the witness and said he would rather buy and could soon pay. The witness told him he had no order yet-to sell, only one applied for, .and that as the property was situated no one would buy; but if he *would sign a lease to enable others to buy and [*410 give as much as others, he could keep the property. At the time appointed to execute the lease, the defendant came and requested more time, which the witness gave him, but what length of time is not stated. Nothing more appeared to Rave passed between them, and in the same year, 1827, this ejectment was instituted. No notice to quit or demand of possession was proved. The judge ordered the plaintiff to be non-suited.
    An application to set aside the non-suit was now submitted to this court, without argument.
   By the Court. The defendant went into possession of the premises in question under the lessors of the plaintiff,, or their ancestors, and has remained many years in the possession, acknowledging from time to time the right of the lessors of the plaintiff and setting up no claim adverse- or hostile to them, paying -indeed no rent, but making more- or less of useful improvements. Under such circumstances-it was not lawful for the lessors of the plaintiff at their will and .without notice to quit or demand of possession, to treat the defendant as a trespasser and subject him to an action- and to the payment of costs : The non-suit was rightfully ordered.

Judgment for the defendant.  