
    Doe d. William Bright v. Rebecca Stevens.
    The effect of a recovery in an action of ejectment is not conclusive-as to title; but it is evidence of the right of possession in the party recovering, at the time of the recovery.
    A judgment by default in a former action of ejectment between the same parties, legally establishes the right of the plaintiff to the possession of the premises in a-second action of ejectment between them for thesame premises; but unless it is followed by an entry into possession, either by a writ of possession, or without writ, but with the consent, or by the surrender or abandonment of the defendant, such judgment can have no effect on the defendant’s possession, or upon the question of title, founded, upon his part, on an actual and uninterrupted adverse possession of twenty years’ continuance.
    This was an action of ej.ectment for an unimproved lot of ground on Walnut Street, in the city of Wilmington. Bright, the plaintiff, adduced a legal title, through sundry conveyances offered in evidence on his part, to two-thirds and ■ to three-fourths of, the remaining third of the lot in question. He also proved that he had brought a previous action of ejectment against the defendant for the same ' premises to the May Term, 1849, in which he obtained judgment by default against her, and soon afterwards entered peaceably, but without writ, into the possession of them; when the defendant came to him and said, that since he had cast her in the suit, she now found that he had a better title to the lot than she had; she should now give it up to him, and -have no more to do with it. On the part of the defendant there was also a show of legal title to the premises; but an adverse possession of more than twenty years prior to the commencement of the present action, was the main defence relied on; and for this purpose the defendant proved that her husband, John Stevens, under whose will she derived her claim to the lot, was in possession of it, and had a garden on a portion of it, and was in the habit of penning pigs and. cows upon it as early as 1832 or 1833, up to the time of his death in 1837, when she entered into the possession of it, and continued to use and occupy in like manner until the recovery of the judgment by default, in the previous action of ejectment, at the suit of the plaintiff against her, in 1849. It was after the recovery of this judgment by default that the plaintiff" entered upon the premises without objection from the- defendant, and continued in the undisputed possession of it until 1,850, when the latter re-entered and forcibly evicted him from it. ■
    
      D. M. Bates, for the plaintiff:
    This action was instituted November the 11th, 1853. In it title does not mean or signify ownership, hut right of possession at the time of the ouster committed". If, therefore, the defendant had the right of- possession at the time of the entry of the defendant upon him, he would be entitled to recover. We have shown by the deeds offered in evidence, that the plaintiff has the legal title to two-thirds and -three-fourths of another third of the premises. In May, 1849, he commenced an action of ejectment against Mrs. Stevens for the lot, and it appeared by the record that a copy of the declaration was served on her, and that she suffered judgrbent to go against her by default; that the plaintiff thereupon entered into the peaceable possession of the lot, and that the defendant afterwards forcibly evicted him from it. I shall not contend that this judgment was conclusive of the rights of the parties in this instance; but I do maintain that it put the defendant to her action of ejectment against the plaintiff, to recover the possession, if she was entitled to the premises either by an adverse possession of twenty years before the action was instituted, or by a formal legal title to’ it. Because the possession of the plaintiff under the judgment was a rightful possession, and could not be disturbed by any one without a better right of possession, and establishing it by an action of ejectment brought for that purpose. A person in possession, under such a judgment, may recover on such a possession merely, as against a mere wrong-doer who forcibly evicts him. 14 Eng. C. L. R. 481; 41 Ehg. C. L. R. 23; Smith v. Lorillard, 10 Johns. 356. His entry under the judgment was conclusive; as to his right of possession, and made his possession lawful at the time he was forcibly evicted by the defendant without a better right. Jackson v. Rightmire, 16 Johns. 324. An adverse possession is a possession taken under a claim of right, and must not only be taken, but must be continued without interruption for twenty years, in hostility to the title of the rightful owner; and, therefore, if the plaintiff, after the recovery of the judgment by default, re-entered on the premises but for a day, it interrupted the adverse possession of the defendant, and it was no defence.
    
      Gordon, for the defendant:
    
    If the defendant, and those under whom she claims, had been in the adverse possession of the premises for twenty years before the entry of the plaintiff, after the recovery of the judgment by default in the former action of ejectment between the parties, the plaintiff was not entitled to recover; because a judgment by default in ejectment was no evidence of title, and the plaintiff’s re-entry upon the lot, after the recovery of it, without a writ qf possession, was itself a trespass, unless it was proved that the defendant had abandoned the possession absolutely after the rendition of the judgment; and, therefore, such a re-entry by the plaintiff' could give no right of possession.
   The Court,

Wootten, J.,

charged the jury: The object of this action is to recover the possession of the premises in question, and to do this the plaintiff must prevail on the strength of his own title, and not upon any weakness or defect in the claim of his adversary. He rests his right tó recover, first, upon the' ground of his legal title to two-thirds and the three-fourths of another third of the lot from a certain Isaac Jones, traced down through a chain of paper title to himself; and secondly, on the ground of a judgment obtained by default in 1849, in a former action of ejectment between him and the defendant for the recovery of the premises, and his peaceable re-entry and possession of the premises from that time until 1850, when he was forcibly evicted, as he alleges, from them by the defendant. The defendant, on the contrary, resists his right to recover, first because, as she alleges, she and her husband, under whose will she claims to own the property, have together been in the peaceable and continuous possession of it for" more than twenty years prior to the commencement of the present action, as the rightful owners of it, and secondly, on the ground that the recovery of the judgment by default by the plaintiff, in the former action of ejectment between them, was no evidence of title in him to the premises, and that his entry afterwards upon the premises, without writ, was itself an act of trespass, and gave him no right of éntry and no right of possession, so as to interrupt the adverse possession of the defendant. We may therefore regard the case as substantially turning and depending on the question whether the defendant has succeeded in establishing in herself and her husband, under whom she claims, a continuous and uninterrupted adverse possession of the premises for a period of twenty years or more previous to the commencement of the present action. If she has, then your verdict should be for the defendant; but if she has not, then it should be for the plaintiff. If, therefore, it should appear to you from the evidence that before this possession of twenty years was complete, the defendant was actually'out of possession and the plaintiff was let into it, either upon a writ of possession under the former recovery of judgment by default, or by the consent or voluntary surrender of the defendant of the possession, it would not be such a continuous adverse possession as would constitute a valid defence to the present action; for the effect of such a recovery and possession Under it would be to interrupt her possession, and her subsequent re-entry and eviction of the plaintiff could not complete it. A recovery in an action of ejectment is not conclusive as to title, but it is evidence of the right of possession of the party recovering at the time of recovery; and if the plaintiff in this case was let into possession of the premises under the former recovery, either by a writ of possession or by the consent of the defendant, and she has not shown a continuing adverse possession of twenty years prior to that time, the plaintiff is entitled to recover. The case turns, therefore, as we have before remarked, very much, if not entirely, on the question of possession by the defendant. If the plaintiff has established a legal title to all, or a portion of the lot, and the defendant has not shown an uninterrupted adverse possession of twenty years in herself and those under whom she claims, he is entitled to a verdict for all, or such part of it as he has established a legal title to; but if the defendant has succeeded in proving to your satisfaction such a possession for twenty years, or more, previous to the recovery of the judgment by default, and the entry of the plaintiff afterwards, the verdict should be for the defendant, notwithstanding the legal title to the premises may have been shown to be in the plaintiff

After the jury had retired, and had been all night deliberating on their verdict, the fdllowing inquiry was propounded by them in writing to the Court: “ Will the Court inform the jury whether the judgment obtained by default, by Mr. Bright, the plaintiff, legally interfered with the right of possession of Mrs. Stevens, the defendant ?” To this inquiry the Court replied that the judgment by default in the former action of ejectment between the parties legally established the right of the plaintiff to the possession of the premises, but unless it was followed by an entry into possession, either by a writ of possession or personally without writ, but with the consent or by the surrender or abandonment of the defendant, such judgment would have no effect on the defendant’s possession, or upon the question of title founded upon her part on an actual and uninterrupted adverse possession of twenty years’ continuance.

Verdict for defendant.  