
    Moody and Others v. M’Kim.
    Decided February 1st, 1817.
    i. Ejectment — What Plaintiff Must Show — Case at Bar.-In Ejectment, if it appear from the evidence that the land in controversy was vacant, when the defendant came to the possession of it, peaceably and quietly, without any privity between him and the lessors of the plaintiff or those under whom they claim; the plaintiff cannot recover, upon the ground of the prior possession, of the lessors, without proving- twenty years uninterrupted adverse possession on their part or on the part of those, under whom they claim, or shewing a right to the possession by the death and seisin, in the manner prescribed by the Act of Assembly, of some person under whom they claim.
    On the trial of this cause, (which was an action of Ejectment in the County Court of Henrico, for a Lot of Ground in the City of Richmond,) the defendant (M’Kim) by his Counsel moved the Court to instruct the Jury, “that, if it should appear to them from the evidence that the Lot in controversy was vacant, when the defendant came to the possession of it; that the defendant came into possession peaceably and quietly; and that there was no privity between the defendant and the lessors of the plaintiff, or those, under whom they claim; that then, to entitle the plaintiff to-recover upon the ground of prior possession, the plaintiff must prove twenty years uninterrupted adverse possession on the part of *the lessors of the plaintiff, or those under whom they claim, or a right to the possession must be shewn by the death and seisin, in the manner prescribed by the Act of Assembly, of some person under whom they claim:” which instruction the Court refused to give to the Jury; whereupon the defendant filed a Bill of Exceptions.
    The defendant also moved the Court to instruct the Jury, “that, if a subsisting legal Title to the Lot in question is shewn to be out-standing in a third person or persons, and no privity is shewn between the defendant and the lessors of the plaintiff, or those, under whom they claim; and it shall appear that the defendant was not an intruder or trespasser upon the possession of the lessors of the plaintiff, of those, under whom they claim; that such out-standing title is a bar to the action.-” The Court also refusing to give this instruction, the defendant again excepted.
    The Counsel for the defendant having offered to prove, as a bar to the plaintiff’s. Title, a legal Title out-standing in a stranger, the plaintiff by his Counsel moved the Court to instruct the Jury, ‘‘that such outstanding Title, in order to be a bar as aforesaid, must be proved to be a present, subsisting, operative title; otherwise, that the presumption is that such Title in a stranger has been extinguished:” and the Court accordingly gave the instruction required; to which opinion also the defendant excepted.
    The Jury found a Verdict, and Judgment was entered for the plaintiff, which, on Appeal, was reversed by the Superior Court of Haw ; that Court being of opinion “that the County Court erred in refusing to give to the Jury the instruction required as mentioned in the first bill of exceptions.’'’ Judgment was therefore pronounced that the Verdict be set aside, and the cause remanded for a new trial, with directions to the said Court to give said instruction to the Jury to be then empaneled.
    From which Judgment the lessors of the plaintiff appealed to this Court.
    John Robertson for the Appellants, contended that there was no error in the Judgment of the County Court of Henrico. If
    in any case the instruction required would” be improper, this “Court must sanction the refusal to give it.
    Twenty years adverse possession is not necessary, where the defendant is a trespasser or intruder without colour of title. Allen v. Rivington, 2 Saund. Ill; Jackson v. Hazen, 2 Johns. N. Y. Rep. 22; and Jackson v. Harden, 4 Johns. N. Y. Rep. 202, are express authorities to this effect. Priority of possession alone, as against such defendants, is sufficient. And, in support of the opinion of the County Court, it is fair to suppose that the defendant in this case was a mere intruder without colour of Title.
    But if this cannot be supposed, yet it is not incumbent on the plaintiff to prove an uninterrupted adverse possession of twenty years. Because, to require this is to require proof of a negative, a negative which it would hardly be possible to establish even indirectly; unless actual possession could be shewn during every minute for the space of twenty years. Besides, if an interruption of the possession was necessarily a bar to the plaintiff’s recovery, that fact might and ought to be established by the defendant.
    So far from its being necessary for the plaintiff to shew an uninterrupted possession, it is clear that his possession may have been interrupted, and yet his claim is in no degree prejudiced. For example ; the plaintiff relies upon a possession of twenty years, and it appears that, during this period, he was forcibly or fraudulently dispossessed, by a stranger without colour of title, and kept out of possession one or more years, but regained the possession by his own act, or by act of law under a Writ of forcible entry and detainer, or otherwise. This would be an interruption of his possession, and yet surely no reason why he should not recover against a subsequent wrong doer. On the contrary, the restitution of possession would confirm his title, or at least place him in statu quo.  The entry of one, having no right to enter, could be of no avail to the wrong doer or to any other person, nor, consequently, in any degree weaken the title of tne person dispossessed, unless the latter permitted it to work this effect by long acquiescence.
    There is nothing in the other Bills ofFx-ceptions, it is believed, deserving a comment.
    
      William Hay, jr. contra.
    All presumption of any title, in the lessors of the plaintiff, other than what could be derived from a mere prior possession, after-wards relinquished, is excluded by the terms of the instruction requested; as also the supposition of trespass upon their actual possession.
    Mere priority of possession, in such a case, is not a sufficient title. If so, the plaintiff might prevail upon a prior possession of a single day, against any length of possession in the defendant, short of twenty years. Allen v. Rivington, 2 Saund. Ill, cited by the opposing Counsel, was a case of trespass by the defendant upon actual possession of the lessor of the plaintiff. Possession by the lessor and ouster by the defendant were found by the Jury: and although, as stated, confessed by the common rule, yet they must be proved on the trial : when found by the Jury then, it is not because they were confessed, but because they were proved. Jackson v. Hazen, 2 Johns. 22, is open to the same observation. It was a tortious entry of the defendant upon the lessor’s axtual possession. In Jackson v. Harden, 4 Johns. 202, the prior possession of the lessor was under colour of title.
    The mere priority of the possession then is not sufficient. Yet, as a person may, upon a mere possessory light, recover under some circumstances; if it be not the priority, what is the quality in the possession, which is the foundation of the right? Such a length and kind of possession as would bar the right of entry, or in the words of the instruction asked, twenty years uninterrupted adverse possession.
    The uncertainty, which would prevail without such a rule, is an argument in fa-vour of it: If twenty be not the number, what number of years shall it be? one, two, five, or ten?
    The Rule contended for may be fairly deduced from the principles of the action. The plaintiff must recover on the strength of his own title,  It is an answer to the action therefore to shew a right of entry in another. Where possession then is the only title, it must be such as will toll the entry of the owner; and this is twenty years continued adverse possession; otherwise, there will be a subsisting right of entry in the owner, which may be set up in bar to the action.
    “Again, the plaintiff must recover upon the right of possession. It is implied in the term, “right,” that it should be exclusive. It cannot be in two. If then the owner’s entry be not tolled, it must be in him; and the plaintiff cannot recover upon any possession, .which is not sufficient to toll such entry; for he would not have the right of possession.
    The rule contended for results clearly from another principle of the action; that, notwithstanding the confession by the common rule, an ouster must be proved at trial; by which is not meant “a putting out by the shoulders,” (to use Lord Mansfield’s words,) but an actual entry upon the possession of another. The confession in intended to facilitate the proceedings, but not to give the lessor a right in a case, in which he has none,  A person cannot be ousted of that, which he has not. Where the premises are vacant (as this case supposes) when the defendant enters, the injury is of course to the right of possession, as th'ire is no actual possession to be disturbed; and that right is in the owner.
    Stokes v. Berry, 1 Salk. 421, is an authority of weight in support of the rule, I contend for. It will be said, perhaps, that this authority decides such a possession to be sufficient; but not that no other would suffice. The decision is expressly' founded upon the continuity of possession for twenty years. Why mention this with such emphasis, if a possession short of that time is sufficient. Why the reference to the Act of Limitations? At any rate, the case decides the kind and length of possession required to toll an entry, which, under the circumstances of the case, it has been attempted to prove, .must be shewn in the lessor.
    This rule also claims support from' Birch v. Alexander, 1 Wash. 34, by analogy from the length and kind of possession required in a Writ of right. The Court must be taken to assert the proposition that sixty years uninterrupted adverse possession is necessary in that proceeding, where possession alone is relied on. The same criticism may be made upon that case as upon Stokes v. Berry. If the Court had not thought it necessary, why catch at a shadow? Why not give the better answer that it was not necessary?
    The case of Landlord and Tenant, relied upon by the opposing Counsel, byno means conflicts with these principles. *A recovery in such case is permitted from the privity between them; the defendant holding over being estopped from disputing the title of his landlord. But, in our case, all privity is excluded by the terms of the instruction.
    3 Bl. Com., also cited by the Counsel, is an authority in our favour: the possession which is prima facie evidence of title is the actual possession, which is in the defendant.
    But, it is said, if trespass could be maintained, why not Ejectment? Because title is necessary in the one case, and not in the other, as explained by. Lord Kenyon in Graham v. Peat, 1 East. 242.
    Again, it is said that the instruction asked cannot be correct, because it requires the plaintiff to prove not only twenty years adverse possession, but uninterrupted adverse possession ; that this is calling upon him to prove a negative, and would not be necessary against the owner; and that the action could be maintained if the possession had been expressly found to have been interrupted.
    This argument is founded upon a misapprehension. The word uninterrupted is used, not in relation to the peace or quietness, but the continuity of the possession. As applied to the adverse character of the possession, it can have no other meaning; and it would be doing violence to give it any other, when applied to any other quality of the possession. It is, therefore, not a negative which they are called upon to prove, but an affirmative proposition, viz. twenty years continued adverse possession. And this sense of the word is fully faxed by the authorities of Stokes v. Berry and Birch v. Alexander, in which it occurs. Now the continuity is implied in the very terms twenty years adverse possession ; and the use of the word uninterrupted can at most subject us to the charge of tautology, but not of error in law.
    Robertson in reply. It is said that, if prior possession alone be sufficient to authorize a recovery in Ejection, the possession of one day would be good against that of nineteen years. But does not the same consequence follow, if Mr. Hay’s rule be adopted, requiring proof of twenty years possession? tinder the operation of this rule, a quiet possession of nineteen years *would not avail against a mere intruder who has had possession but one day.
    The phrase of “vacant lot,” in the Bill of Exceptions, is relied upon as shewing that the possession must be considered- as abandoned. No such inference can be drawn. A Lot or House may be vacant, and the possession not relinquished : possession once taken will continue till some act be done by the real owner, (2 Bl. Com. 196,) or, at least, until the adverse entry of some other person.
    And this gives the answer to the observation that all the cases from Saunders and Johnson are cases of trespass upon the actual possession. So too is the case at bar a case of trespass upon the actual possession, unless there could be no possession of a vacant Lot: and the case in 4 Johnson is precisely analogous in this respect, being the case of an entry on a vacant piece of Land.
    The plaintiff, it is contended, must recover on the strength of his own title, and must shew suc-h a length of possession as tolls the entry of the owner. This might be necessary in an action against the owner, but not against a stranger. It will be admitted that a Landlord is not bound to shew any Title in an action against his Tenant: and a fortiori, no such proof could be required against one, who intruded on the possession without leave and without right.
    Mr. Hay says that an actual ouster must be proved; and that no ouster could have taken place in this case, because the premises were vacant. The answer is that, after Verdict, it must be presumed that every thing was proved, without proving which the plaintiff could not have lawfully recovered, unless the contrary appears. Consequently, the plaintiff in this case must have proved possession in himself, and ouster by the defendant.
    It is not believed that any case can be found to justify the position that a defendant without colour of title, not even relying upon an out-standing title in another, would be permitted to hold against a plaintiff, having had peaceable possession for nineteen years. The rule established in Allen v. Rivington ought not to be considered as reversed, (any more than that, which prevails between Landlord and Tenant, Mortgagor and *Mortgagee,) by the decision that a legal Title must be shewn in order to recover in Ejectment.
    This latter rule itself was strongly opposed by Ld. Mansfield and Buller; it reversed the rule, as it had stood for many years before; as it prevailed, when we adopted the common law of England, and had ceased to be bound by any new rules or laws she might afterwards establish.
    The word “uninterrupted” Mr. Hay remarks, as applied to possession, has no relation to its peace or quietness, but to its continuity. On the contrary the word is always used in the former sense, which is its common acceptation. In Cowper “an undisturbed possession” is the phrase employed; in 3 Johns. 375, “a peaceable possession,” and in 2 Salk. 685, “a quiet possession,” are the terms used, all having the same meaning. It is in this sense it must be understood, if the rule contended for be established. And, under this construction, the tortious entry within twenty years of any individual will enable a subsequent intruder to maintain his ground, or, at least, to put the plaintiff to the proof of a legal title.
    
      
      Ejectment — Title to Support Action as against Trespasser. — When a party In peaceable possession of land is entered upon and ousted by one not having title to, or authority to enter upon, the land, the party so ousted may recover the premises in ejectment upon his possession merely; and his right to do so cannot be defeated by the defendant showing that there is or may be an outstanding title in a third person, but only by showing that the defendant himself either has title or authority from the person having the title to enter under the title. Witten v. St. Clair, 27 W. Va. 771, citing principal case.
      The heirs of a patentee of land forfeited for non-payment of taxes,- and not redeemed, cannot maintain ejectment for it against a party who has entered upon it peaceably, though the tenant has no title to the land. Usher v. Pride, 15 Gratt. 190, 201. on the authority of the principal case. See further, monographic note on “Ejectment” appended Tapscott v. Cobbs, 11 Gratt. 172.
      The principal case is also cited in Garrett v. Ramsey, 26 W. Va. 365.
    
    
      
       3 Bl. Com. 179, 181; 4 Johns. 211.
    
    
      
       Runnlngton on Eject. 23.
    
    
      
       Roe on dem. of Haldane and Urry v. Harvey, 4 Bnrr. 2487.
    
    
      
       Per Lord Mansfield, in Taylor ex di miss Atkyns y. Horde, 1 Burr. 119.
    
    
      
       ^unnington. 23.
    
    
      
       Doe on dem. of Briston v. Pegge, cited in ISfote to Ooodtitle y. Morgan, 1 Term. Rep. 758; Doe y. Staple. 684.
    
   February 1st, 1817. JUDGE ROANE pronounced the Court’s opinion that the Judgment be affirmed.  