
    J. Abram’s Lessee v. G. Will.
    To recover in ejection upon prior possession alone,'that possession must have been actual and notorious.
    The court may, in a proper case, in giving it to the jury, comment upon the evidence admitted.
    Ejectment from Ross. On the trial in the county, the plaintiff, in support of his title, offered a final certificate of purchase, issued for the land claimed by the United States land office, to his lessor’s ancestor, upon which no patent had in fact been issued. He offered no other direct evidence of title, but proved that the ancestor had laid out a town upon the quarter section and recorded the plat of it under our law, and that he had paid the taxes of the tract. The defendant disclosed no title. The court instructed the jury that the certificate of purchase only furnished evidence of an equity in the lessor of the ^plaintiff, but not of a legal right [165 to possession avoidable in ejectment. The judge commented upon and explained to the jury the evidence as to the laying out and recording the town plat, as bearing upon the question of possession in the ancestor of the plaintiff’s lessor, and concluded by instructing them, “that to enable the plaintiff to recover upon the prior possession of his ancestor alone, that possession must have been actual, notorious, and open.” The jury found for the defendant.
    T. Scott, for the plaintiff,
    now moves for a new trial, because the court erred:
    1. In instructing the jury that the final certificate of purchase-from the United States land office, did not confer upon the holder-a legal estate upon which he could recover in ejectment.
    2. In not instructing the jury that the laying out a town upon-the land, and paying the taxes, was sufficient evidence of the possession of the ancestor upon which to recover.
    3. Because the court commented upon the facts to the jury.
    Creighton and Bond, and G. Swan, contra,
    cited 3 Wheat. 412; 2 Wash. C. C. 33; 1 Marsh. 440; 2 Bibb, 417; 4 Bibb, 554; 2; Ohio, 263; Til. Ad. on Ej. 32, note 1, 247, 489; Littell’s Sel. Cases, 
      513; 1 Ohio, 313; 1 Caine, note, 190 ; 3 Johns. 388; 2 Stark. Ev. 515 ; 2 Har. & Johns. 380; 3 Ohio, 263.
   Wright, J.,

announced that as to the second and third points relied on for a new trial, the court were unanimously of opinion, that no error in the court was shown. Whether the laying out the town, paying the taxes, etc., satisfied the jury of an actual possession in the ancestor, was a question for the jury; and that, in a proper case, it was the duty of the court to explain the evidence given to the jury.

That, as to the other point, two of the judges were of opinion that the holder of a final certificate of purchase and payment from the United States land office, has a right of entry, upon which he may recover, against one showing no title, and relying upon a mere naked possession ; while the other two judges thought differently.

This division of opinion operates to overrule the motion for a new trial.  