
    Banyer and others vs. Empie.
    Ejectment for premises not actually occupied may be brought against one claiming title at the commencement of the suit, though his claim has been manifested hy. words merely.
    Otherwise of an idle declaration of a party that he owns the premises, not amounting to a serious claim of title. Per Bronson, J.
    Ejectment, tried at the Schoharie circuit in October, 1842, tieforé Cushman,- C; Judge. The pMitiifkowned a lot ih the Belvidere patent, and the defendant a lot in the adjoining Skinner patent, between which patents two lines had been run which were about twelve chains apart. The Belvidere lay west of the Skinner patent. The plaintiffs claimed that the east or Cockburn line was the true boundary between the patents, and that their lot extended to that line. The defendant claimed that the-west or Campbell line was the true boundary between the patents, and that his lot extended to that line. The strip between the two lines was unoccupied wood land. The defendant claimed to own it, and had so claimed for three years; and some evidence was given tending to show that he had sold two trees from it. After the plaintiffs had given evidence of their title, the defendant moved for a nonsuit on the ground that he was not the actual occupant of the premises, and there was no other fact to warrant the bringing of the action against him. A nonsuit was ordered; and the plaintiffs now moved for a new trial on a bill of exceptions.
    
      M. T. Reynolds, for the plaintiffs,
    insisted that the facts proved at the trial were sufficient to show the action to have been well brought against the defendant. The premises were not actually occupied by any one, and conceding that no acts of ownership on the part of the defendant were proved, he claimed title at the time of the commencement of the suit, and was therefore within the very words of the statute. (2 R. S. 304, § 7; Shaver v. M’Graw, 12 Wend. 558; Edwards v. Farmers' Fire Ins. and Loan Co. 21 id. 467.)
    
      H. Hamilton, contra,
    said that proof of a mere verbal claim of title, unaccompanied by any thing tending to show the defendant to have been in the actual or constructive possession of the premises at the time, was not enough to maintain ejectment against him. The section of the revised statutes relied on by the plaintiffs’ counsel, would, indeed, if literally construed, sanction his doctrine. Other sections of the same statute, however, show the intent of the legislature to have been in accordance 'with the decision of the circuit judge. (2 R. S. 305 to 311, §§ 7, 12, 22, 28, 29, 31, 34, 36, 43, 48.) For the purpose of harmonizing these provisions with that part of the fourth section which provides for the action being brought against “ some person exercising acts of ownership on the premises claimed, or claiming title thereto” &c., the court are authorized to construe the word “ or” to mean and; especially where, as in this case, by construing “ or” in the disjunctive sense, the statute would be rendered absurd. (Jackson v. Blanshan, 6 John. Rep. 54; Jackson v. Topping, 1 Wend. 388; Wright v. Kemp, 3 T. R. 470; Frammingham v. Brand, 1 Wils. 140; Barker v. Surtees, 2 Str. 1175; Den, ex dem. Wilkins, v. Kemeys, 9 East, 376, 7.)
   By the Court, Bronson, J.

When the premises are actually occupied, the action of ejectment must be brought against the occupant. “If they are not so occupied, the- action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.” (2 R. S. 304, § 4.) The land in question was not- actually occupied, and the defendant claimed title to it, and had done so for three years. That brings the case plainly within the statute, and the plaintiffs should not have been nonsuited. It is said that this question was not necessarily decided in Shaver v. M’Graw, (12 Wend. 558;) nor in Edwards v. Farmers’ Loan Co., (21 Wend. 467.) That may be so; but it is decided by the statute. We are asked to change or into and, so that the section will read, that the action may be brought against a person exercising acts of ownership and claiming title to the land; and cases are cited where, in the construction of wills and deeds, the courts have substituted one of these words for the other, in order to carry into effect the intention of the testator or parties as collected from the whole instrument. But we are here dealing with a statute, and there is nothing to show that the legislature meant any thing different from what they have so clearly expressed. It cannot be doubted that the legislature intended to change the old rule, and allow ejectment to be brought for the recovery of unoccupied lands. This was done for the purpose of enabling the plaintiff, while his witnesses were alive and at command, to settle the right between himself and another claimant, without the necessity of taking possession and then waiting for an action to be commenced by the other party. A recovery in ejectment is now made conclusive of the right, as between the parties to the action and persons clahning under them by title accruing after the commencement of the suit.

There is undoubtedly some objection to allowing an action to be brought where there has been nothing but a parol claim of title. But a party should not set up a title to lands unless he is prepared to defend it. An idle declaration that he owns the land will not be enough. But if he seriously lays claim to the land, he does so at the peril of making good the claim. Here the parties owned adjoining lots, and the boundary between them was in dispute. The defendant claimed that the west or Campbell line was the true boundary, and that he owned the land lying east of that line, including the premises in question. This claim had been made for three years. The statute has given the plaintiffs the right of having this question of title determined by an action of ejectment.

It is true that many provisions in the statute were framed with reference to the common case of a party in possession; but they may easily be accommodated to an action, clearly given by the same statute, for the recovery of unoccupied lands.

It is said that one of the plaintiffs was in possession. Whatever color there may be for the objection, it is enough to say that the judge did not put the nonsuit upon that ground.

New trial granted.  