
    Clay v. Ransome.
    Wednesday, October 31, 1810.
    1. Ejectment' — Twenty Years’ Possession. — A defendant in ejectment is protected by 20 years’possession before the action bro’t; but the 5 years and 174 days, excluded by the act of Assembly, are not to be counted in his favour.
    2, Same--' — Same—Special Verdict. — -If. therefore, upon a special verdict in ejectment, it be uncertain whether the defendant, or those nncier whom he claims, had 20 years’ possession, exclusive of the said 5 years and 174 days, a venire de novo ought to be awarded.
    Upon an appeal from a judgment of the District Court of Prince Edward, rendered for the defendant, the 4th April, 1805, in an action of ejectment on behalf of Charles Clay against Elizabeth Ransome.
    The case was submitted, without argument, by Samuel Taylor, for the appellant, and Munford, for the appellee, and is sufficiently stated in the following opinion of Judge Tucker; except that it may be proper to mention, that the claim of the lessor of the plaintiff, as set forth in the special verdict, was founded on a deed of mortgage dated the 20th of April, 1772, from a certain Anthony Winston (who was found to have been in possession at that time) to James and Robert Donalds & Co. ; a decree of foreclosure, dated the 3d of October, 1797, against the heir at law and executor of Anthony Winston ; and a deed, dated the 24th of January, 1798, to the lessor of the plaintiff, from the Commissioners appointed by that decree to sell the land. íío possession by Janies and Robert Donalds & Co., by Anthony Winston, or any person holding under him, either before or after the 20th of April, 1772, or by the lessor of the plaintiff, after the 3d of October, 1797, was found by the Jury.
    Friday, November 2.
    
      
      See monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

Clay brought an ejectment on the 17th of August, 1799, against Ransome. The Jury found a 455 special verdict, «which they conclude thus: “We find that Flamslead Ran-some, the late husband of the defendant, was in possession of the land in question, from 1774, until his death, about ten years ago; and that the defendant hath been in possession thereof ever since;” and refer the law to the Court.

An ejectment is a possessory action, and only a competent remedy where the lessor of the plaintiff may enter: therefore, it is always necessary for the plaintiff to shew that his lessor had a right to enter; by proving a possession within 20 years, or accounting for the want of it under some of the exceptions allowed by the statute. Twenty years’ adverse possession is a positive title to the defendant: it is not a bar to the action, or remedy of the plaintiff, only; but takes away his right of possession.

Every plaintiff in ejectment must shew a right of possession, as well as of property: arid therefore the defendant needs not to plead the statute, as in the case of actions,

Here the Jury have found an adverse possession for more than twenty years. But our statute of limitations excepts three different periods, from the 12th day of April, 1774, to the 20th of October, 1783; amounting, in the whole, to five years and 174 days. If Ransome’s entry was made in the month of January, 1774, or at any time before the 23d or 24th of February in that year, his possession and that of his wife would amount to a complete bar, after deducting the period allowed by the statute. If his entry were after the 25th of February, the case will be within the saving clause of the statute. I am therefore of opinion, that the verdict is not sufficiently certain upon this point, and that there ought to be a venire de novo for that reason.

JUDGES ROANE and FLEMING concurred. The judgment was therefore unanimously reversed, and a venire de novo awarded. 
      
       1 Burr. 119 per Lord Mansfield; Bull. N. P. 103, 2 Esp. N. P. 402, citing Stokes v. Barry, Salk. 421; 1 Lord Raym. 741; Kunnington’s Law of Eject. 119 accordant.
     
      
       1 Rev. Code, c. 76, s. 11, p. 109.
     