
    CATON’S LESSEE v. HAMILTON et al.
    Supreme Court. Kent.
    October, 1797.
    
      Bayard’s Notebook, 205.
    
    
      
      Ridgely and Miller for plaintiff. Read, Vining and Bayard for defendants.
   Per Curiam.

It is a first principle in ejectment, never denied, that the plaintiff is to recover upon the strength of his own title. The written title of the plaintiff begins in 1722 and is a common conveyance from one John Rhodes to one Andrew Caldwell. No patent, warrant or survey has been produced, nor is any evidence offered that any ever existed. Nay, it is not shown that any attempts have been made to discover such original papers. We have often said and so ruled during this circuit that it is incumbent on the plaintiff to show the title out of the Proprietary, and we see nothing in this case to exempt the plaintiff from the common rule. The recital of a warrant and survey is no evidence that they ever existed. And what we much rely on is that no search has been made after them, and we cannot presume them lost when not the least evidence is offered that they ever existed. The plaintiff relies on a possession of sixty years, but we do not consider the evidence clear of so long a possession. It may be fifty-eight years, but this will not avail him.

It is insisted also that the defendant claiming under the same title with the plaintiff shall not be allowed to take advantage of the want of a grant. But in fact the defendants do not claim under the same title. They have shown no written title. They say they rely on their possession, and we do not consider that the plaintiff can compel them to claim under, a title which they disclaim. We are therefore of opinion that there is a defect in the plaintiff’s title not cured by any circumstances which have appeared in evidence.

Upon this opinion the jury gave verdict for defendants.  