
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV 1805.
    Lehre v. Murray.
    The capias ad respondendum in this action was not indorsed with a notice' that the title of the land trespassed on, was to be tried, but the declaration was so indorsed before the defendant had pie ded. This was considered a virtual compliance with the acts of assembly, doing away the proceedings in ejectment, &c.; and the action was held to be an action to try the titles.
    Motion for a nonsuit, or new trial.
    The action was trespass, quare cl. fr., and was intended to try the titles to a tract of land, but the plaintiff had neglected to indorse on the original and copy writ, that the action was brought for that purpose. The declaration was indorsed with these words : “ Trespass to try title, as well as for damages but it was not Icuown whether the defendant’s counsel ever saw those words on the de-duration, or not. The plaintiff at the trial before Waties, J., Iu Sumter district, produced a grant for five hundred acres of land, situate on Dry Swamp, on the waters of Wateree river, to James M'Kelvey, dated 18th October, 1757.
    Col. II. IvPKelvey was sworn and examined as a witness for the plaintiff, and he said, that the grantee was his father. That he died intestate ; and that the land descended to himself. This witness being objected to, as interested, a bond was produced, given by 11. M‘Kelvey to R. Hails, dated August, 1782, for a large penal sum, conditioned- to make titles to this laud. And also a deed of conveyance from R. M‘Kelvey, dated in October, 1805, stating that the land had been sold to Hails ; that Hails had sold to Du-bose, and Dubose to Findlay, whose daughter, the plaintiff, was entitled as heir to Findlay, and conveying the same land to her ; and then produced a release from the plaintiff to R. M'Kelvey, dated the same day of October, 1805, releasing all claims on account of the land ; and also a similar release from Hails. The witness was then admitted as disinterested, and further testified, that he had signed an agreement, which was produced, bearing-date 14th February, 1780, not sealed, and that the witnesses, whose names were subscribed thereto, were dead,, and that he was acquainted with their handwriting This agreement recites, that stid R. M‘Kelvey had that day bargained and sold to said R. Hails, a tract of two hundred and fifty acres of land, on the High Hills of Santee, and had obligated himself to make said Hails titles to the same. This instrument was objected to as inadmissible in evidence, but was admitted, not as constituting a leial title, but as evi. dence, which connected^with other facts,. might be evidence of a title.
    M'Kelvey further testified, that between the years 1779 and 1781, the tories were often at Hails’, and had plundered his house, and taken his stock; but knew not that his papers were taken, or destroyed. That some time before this happened, he believed, though he was not positive, he executed a title to Hails, of the land in dis. pute. He could not recollect who witnessed the deed, though he had a faint recollection of having drawn one.
    The plaintiff next produced a deed, bearing date 16th February, 1798, from R. Hails to Dr, Wm. Lehre and Ann Lehre his wife, reciting, that whereas R. Hails had sold the land to Alexander Findlay, Mrs. Lehre’s father, and had not made titles before the death of Findlay ; and then conveying to them. Then he produced a bill and answer in equity, in which John Seymour and others' were complainants, and the executor of Findlay, who was execu. tor of J. Seymour, defendant; and an order of the court of equity, bearing date 14th May, 1802, which recites, as the suggestion of Mrs. Lehre’s solicitor, a decree which had been made in the cause, and which was lost, and orders the master of the court to deliver to Mrs. Lehre titles to the lands bought by her, at a sale of Alexander Findlay’s lind, pursuant to a decree of the court. The mas. ter’s titles, reciting the said decree, was next produced, conveying, together with other lands, the land in question, to her.
    It was conceded, that the defendant, Murray, was Gen. Sumter’s tenant. The plaintiff next produced a grant for five hundred acres of land, including the land in dispute, to Gen. Thomas Sumter, the same grant under which defendant claims, bearing date 14th January, 1786 ; and then produced a deed executed by said Sumter, the 22d April, 1799,' conveying to T. Hooper land, adjoining the said last mentioned land, in which deed the said laud in dispute is called íor as a boundary as “ land granted to M'Kelvey, now Findlay’s.”
    The identity of the land in dispute was then proved ; and the plaintiff closed.
    Defendant’s counsel now moved for a nonsuit on the following grounds: 1. That there was no proof that plaintiff, or those under whom she claimed, had ever been in possession of the land, and that property alone was not sufficient to enable her to maintain this action. 2. That plaintiff had not proved any legal title in Hails,under whom she claimed. 3. That at any rate, she had shewn a title to a moiety only of the land ; and that other persons ought to have joined her in the suit
    This motion was overruled.
    Defendant then entered upon his defence, and proved,- that id 1792, one Wm. Hampton, as Gen. Sumter’s tenant, took possession of the land, part of it, which he possessed till 1799. That one Sylvester, in November, 1794, got possession under Sumter, of another purt of the same disputed land, and continued thereon, as Sumter’s tenant, till Murray got possession. Also, that Sumter, by his tenants, had constantly had possession of several parts, and had cut down and taken timber from other parts, in the use of the cultivated land ; and that from the year 178G, Sumter had taken his firewood from the land.
    The plaintiff, in reply, proved that she was born the 18th January,-1775, and produced a record of a judicial proceeding at the suit of Wm, Lehre and Ann his wife, against A. Sylvester, one of Sum* ter’s tenants, to recover the land in question. The writ was lodged in the sheriff’s office 19th March, 1798, and the declaration was filed 8 th October, 1798.
    Col R. M‘Kelvey was then re examined, and proved, that in 1787, being in C harleston, with Gen. Sumter, they had a conversation respecting the land in question, and that Surnfer told him he had surveyed and got a grant lor the land, under an impression that it had been bfibre granted to Janies M'Kclvey, of Eutinv, who had died without heirs, and that the land had escheated to the State ; whereupon, M‘KeIvey replied, that the laud had been granted to his lather. To this, Sumter answered, that he had not any intention to deprive him, M'Kelvrv, of the laud, but intended to keep it for him. Oapt. Thomas Sumter was then examined, who said that he was in Charleston, will) his father, in 1790, and that his father had a conversation with Di Win. Lt lire, on the subject of the land in question. That his father offered to give up any lands in his possession claimed by Lehre, if l.ehre would produce titles to the same, that should appear to he good. That Lehre afterward brought his title deeds, but produced no title to the la .d in question. This witness farther said, that in 1797, he, himself, requested Lehre to exhibit his titles to the land, hut none was produced. That he afterwards applb d to Lehre’s counsel to shew his title, but could get no sight of any. That his father " as anxious to settle the dispute amicably.
    . JDeiendant, by way of rebutting this evidence, produced a certificate of the clerk of the court, where the judicial proceedings aforesaid was kept, of record, stating that no proceedings were had in the action against A. Sylvester, after filing the declaration. A certified copy of the last will and testament of Di. W. Lehre, was theu produced, executed 10th May, 1799 : and it was proved that the testator died very shortly afterwards.
    Verdict for the plaintiff; for the whole of the land claimed, and $10 damages.
    Motion to set aside this v.erdie.t, and for leave to enter up a non-suit on the following grounds : 1. That in this form of action, pos-sessh n in plaintiff' is necessary to be proved, and was not proved } and that shewing property in plaintiff, without proof of possession, is not sufficient. 2. That there was not proved at the trial any title in (he plaintiff, derived from any grant. 3. Tha' M-Kfolvey’s evidence ought not to have been admitted, on the ground of'interest. 4. That M Kelvey, although disinterested, was incompetent to prove his own deed. 5. That plaintiff, if entitled at all to the land, made oüt a title but to an undivided part, and that the action in her name alone, was not supported by the evidence produced.
    There was also a motion for a new trial, which was claimed, in case the court should refuse the previous motion for a nonsuit. The groünds fof this motion were the following:
    1. That the evidence of title in the plaintiff, was insufficient to warrant the verdict, particularly as ii was extremely doubtful that the land was ever conveyed.to Hails by M’Kelvey. 2. That the agreement between M’Kelvey and Hails, in 1780, and the bond dated in 1782, were improperly admitted to go to the jury, as evU dence of title in the plaintiff. 3. That M’Kelvey was not a competent witness to prove his own deed. 4. That he was not a com» petent witness in any respect, having an interest in the cause. 5, That the plaintiff’s title was barred by the act of limitations. 6. That plaintiff, having neglected to bring her action within two years after the determination of the suit against Sylvester, was barred by the act of assembly of 1744.. 7. That the verdict being for the whole of the land, ought to be set aside, as the plaintiff had produced evi-deuce of a title to a moiety only.
    These motions were argued, November, 1805, before Gbimke,-Bay, Trezevant, and Brevard, Justices. Waties, J., presided at the trial, and Wildes, J., was of counsel for the defendant;
    Waties, J., stated, that as it was fairly to be presumed defends ant’s attorney did know long before the trial, of the indorsement on the declaration, he was, therefore, of opinion, under all the circumstances of the case, the plaintiff had substantially complied with the act which requires the Writ and copy to be endorsed so that it may appear lo the delendant the action is brought in order to try the titles to the land in question. That as M’Kelvey was proved to be heir at law of James M’Kelvey, the original claimant of the land,'he thought the releases produced, sufficient to remove the objection to his competency. That the agreements between M’Kel-vey and Hails, were admitted, not as evidence of a title to Hails, but as presumptive evidence of a title in M’Kelvey, and by way of furnishing a ground, or foundation, for the deed of confirmation from M’Kelvey to Hails ; but that he had laid no stress on either. That he thougtit the plea of liberum tenementum, put the title in issue, and the defendant was as fully notified, and was as fully prepared,as if the writ had been endorsed as a writ brought to' try the litle, is re-qaired to be. That the proceedings in equity were admitted in evi. dence, to shew that .he plaintiff had acquired a title to herself of the whole of the land after her husband’s death. That he considered the declaration ot the defendant, when he told Col. M’Kelvey his intention was to save the land for him, as a declaration of trust, or as amounting to a promise to abstain from adverse possession ; and that his possession, under the circumstances of the case, could nQt ^ reg.arcjecj ag adverse. That he had charged the jury, that if they believed Hails had made a title to M’Kelvey, which was destroyed, then the plaintiff hud established a title on which she ought to recover. That the loss of a deed, consumed by fire, or destroyed or carried off by a plundering enemy, may be supplied by parol evidence of their loss and contents. As to the first suit by Lehre and wife, the judge said he did not think Mrs. Lehre could be considered as a party by any act of her own.
    Nott, and Blais mho, for the defendant.
    The writ ought to have been endorsed according to the direction of the act of assembly ; otherwise the action cannot be regarded as an action which is to answer the purpose of the old action of ejectment.' There is a clear distinction between the action of ejectment, and an action of trespass, quare clausum fregit. Acts made to introduce a new principle in law, innovating on the settled doctrines of the common law, ought to be strictly construed. If the action was not properly brought at first — if the plaintiff mistook her remedy, no subsequent act of her own could rectify the mistake. The endorsement on the declaration did not cure the mistake, unless it shall be held that in all cases it will answer the same purpose to endorse the declara, tiou instead of the writ. It will be said that the defect of the writ ought to have been challenged at an earlier stage ; but how was it to be done? Could it be done by pleading? Was not the writ perfect in its kind, though not adapted to answer the object in view ? The plea oÍ'liberum tenementum, cannot be construed into a waiver of 4he objection to a writ, as a proper leading process it. ejectment, because the plea of liberum tenementum is n proper plea to an action of trespass, quare cl.freg., and it is not strictly proper to the action of ejectment, because from the nature of' the action, it is presumable the defendant does claim the freehold as his own. When a statute, introductive of a new law, directs a thing to be done in a certain manner, it must be done in that manner, and in no other. Bac. Tit. “ Statute,” Plow. 206. Hob. 298.
    -The act of the legislature requires actual notiee, and, therefore, .■presumptive notice cannot be deemed sufficient. To construe the act in the way contended for, would be in contradiction, not only to the letter, but to the spirit, of it.. Suppose the action had been let fall, could any advantage be taken of it under the act of 11441 In what manner is judgment to be entered up ? Can a judgment for the land be entered up consistent with legal principles ? It is important that the boundaries of actions should be distinctly marked and preserved ; otherwise great uncertainty and confusion must re-suit. A writ, which is good for one purpose, ought not to be taken to answer a different purpose. Then, if it could be maintained only as an action of trespass, qu. cl. -fr., the plaintiff ought to have been nonsuited, because there was no evidence that the plaintiff was in possession. 1 Esp. Dig. 484, 383. The defendant pleaded aot guilty, as well as liberum tenementum, and until the plaintiff had proved a tortious entry to the disturbance of his possession, the defendant was not bound to go into his defence on the plea of liberum tenementum. The plea of liberum tenementum in an action of ejectment, would amount to the general issue ; because it is understood by the plaintiff, from the nature of his demand, that the defendant claims the land as his right and property. But the plaintiff has not shewn that she is entitled to recover in ejectmeut. She never had a legal title until February, 1798. She then acquired a title, sub•ject to ail the incumbrances, and exposed to all the objections to her title which then existed, and as if she had not before had any claim to the land. Before she brought the present action, she was com. pletely barred by the operation of the limitation act. To save the case from the operation of the limitation act, the plaintiff produced 'the record of a former action of ejectment, brought by Lehre and wife in 1798. To rebut the effect of this evidence, it was shewn that this action was discontinued, or let fall, by the plaintiffs, and that more than two years had elapsed before the commencement of the present suit. It has been insisted by the plaintiff, that this institution of the action cannot be imputed to her, as she was under coverture. But if it is produced to uphold her claim, may not advantage be taken of any circumstance attending it, to defeat her claim ? Would it not be unreasonable to say that it shall operate in her favor, and not against her ? If she did not authorise the suit, how can she avail herself of it 1 If she did authorise it, it could not have been discontinued but through her neglect, because by the act of assembly, she might have prosecuted the action, though her husband should have refused his consent. But admitting the writ issued in 1798, was not abandoned voluntarily by the plaiutiff, yet how can the present action be connected with that so as'to avoid the operation of the limitation act 1 It should appear that the action was duly continued. 3 D. and E. 662. At any rate, the action ought to have been revived within a year after her hus« ^an^>s death. The statute began to run before plaintiff’s title ae-crued, and before her marriage, and continued to run on, nntwith-standing her coverture and infancy. Plowd. 1 Str. 556. 4 T. R. 312. 1 Wils. 134. Hayw. 416. Gen. Sumter’s declaration# to M’Kelvey did not amount to a relinquishment of his claim. Besides, parol evidence of such concessions as these, ought not to be admitted to defeat a title gained by possession. It is against the policy of the limitation act, which declares that no claim shall be good but such as is made by action at law.
    The verdict being for all the land is wrong, because the evidence given could not be deemed legally sufficient to pvove a title to more than an undivided moiety. The recital of the deed to the husband and wife, which is void against the plaintiff, shews that Findlay never had a legal title. The legal title was in Hails’, until he conveyed to the plaintiff and her husband. Plaintiff cannot' aver against her own title. The proceedings in equity between other parties, cannot affect the lights of others not parties or privies, If Findlay had an equitable title, which was vested in the plaintiff, by the decree in equity, yet this did not divest the legal title which her husband acquired by the conveyance from flails, and which descended to bis heirs. They cannot be divpsted of their right to the inheritance by transactions in equity, to which they were not- parties or privies. Gen. Sumter cannot be considered as a trustee, for there can be no parol declaration of trust.
    Simons, and Richardson, for the plaintiff.
    The act of assembly abolished the old fictitious action of ejectment. The action of trespass qu, cl. fr. is now the common action to recover damages for intruding on land to the disturbance of those in possession, and also for holding possession against the true owner, and to recover possession. The judges, by the act of December, 1701, are empowered to make reasonable rules, in order to direct how the parties are' to proceed, where the action is intended to recover the land. If the defendant is sufficiently apprised of the object of the suit, it is enough. It will be accounted his own folly if he neglects to prepare himself to defend hts title, if he has notice that it is to be disputed. The plea, in this case, is sufficient evidence that the title was intended to be put in issue. He had notice by the endorsement on the declaration. The cause had been standing eight terms, and both parties knew the title was to be tried. If the objection under any circumstances can be deemed invalid, under the circumstances attending this case, it ought not to prevail. Appearance cures defects in writs. Barnes 163. Formal notice not necessary, Barnes 415, 424. 5 Com. Dig. 296. A statute may be construed against the debtor, to do justice. 6 Boo. 397, new ed. Plow. 68.
    The plaintiff proved a sufficient title to warrant the verdict. The limitation act did not operate to defeat her title. The action brought by her and her husband prevented the limitation act from operating to her prejudice. She wasintitled to take advantage of this action to defend her title; and she was also intitled to deny that the discontinuance of that action can prejudice her. The husband, without her concurrence, might sue, and his action would prevent the limitation act from operating. But his discontinuance ought pot to destroy that effect. Because the husband may promote, but cannot prejudice the wife’s interest in lands. By our law, a claimant of land may bring two distinct actions of ejectment, to try title to the same land, but not more than two. Tho former and latter actions need not be connected. The first prevents the limitation act from running, and if the second action be brought within two years after' the determination of the first, the operation of the act of limitations will be suspended from the commencement of the fust action. The possession of Sumter was not adverse. He held under, and for M’Kelvey, notwithstanding he had a grant. The evidence to this point was left to the jury. 2 Esp. Dig. 433. Cowp. The wife not to be prejudiced by an act of the husband. The suit could not have been discontinued by her without renouncing in court. On this, principle in England, a wife cannot be barred by fine and recovery, without being examined in court. Co. Lift. 353. 10 Co. 42. 2 Com. Dig 90. Husband may forfeit his interest in his wife’s estate, but her interest will not be affected. Co. Lilt. 351, b. But the present real defendant was not a party to the former suit. As to him, it is immaterial how the suit terminated. Suppose Sumter had twenty tenants, and plaintiffs should sue one, and he gives up possession, and the suit is discontinued, and another should do the same; could these discontinuances affect the owner in a third action against defendant himself?
    The whole land was proved to be in plaintiff. The title from Hails shews that the equitable title was in Findlay. The decree in equity gave the plaintiff a legal title to the whole.
    The court must see that justice has been substantially done, and therefore will not grant a new trial on a point of summum, jus, on account of a mere technical objection. 1 Salk. 646. -2 Morg. Ess. 111. 2 D. & E. 4. 4 D. & E. 468. The conduct of Gen. Sumter places him in the situation of one who conceals his title, while Ije stands by and sees another buy the land, which he intends to k.y the title he conceals, and aids in the purchase. He stands in the light of a fraudulent possessor, or one who affects to hold concurrently, while secretly he intends to hold adversely. Defen. dant came of age iu 1796. Her title could not be barred until se. ven years afterwards. The action first, brought was not disconti. nued. There was an order for judgment endorsed, and no further proceedings were had. The action may yet be revived by sci. fa. The action was against defendant’s tenant, so acknowledged ; but not an action between the same parties; but to recover the same land.
    28th April, 1806. The judges delivered their opinions seriatim. Grimke, and Bay, Justices, were of opinion that the defendant was not infilled to a new trial; because they thought the plaintiff had given sufficient evidence to intitle her to recover, and that the action, as brought under all the circumstances of the case, was properly maintainable as an action to try the titles to the land in question. They were of opinion, that the act of 1791, had been substantially complied with. That to have allowed the objection to prevail as to the omission of an endorsement on the writ, as directed by the act of 1791, would have been suffering one party to entrap another by a mere act of form. That all that is required by the act is, that the defendant shall have notice the title is meant to be tried. If the defendant did not intend to try the title ; yet the defendant, by his plea, involved that dispute; and he cannot now say that he had not notice ; and if he had notice, it is to be presumed he made the best defence he could. They were further of opinion, that the defendant had waved his right to claim by possession, in the conversation with M’Kelvey.
   Trezevawt, J.,

thought that the advantage claimed by the objection to the want of an endorsement, was not liberally claimed, and, therefore, he felt a strong desire to get over it; but, that the language of the act, and the policy of it, seemed to him to forbid the construction which had been given to it by his brothers. He was of opinion that the writ ought to have been indorsed pursuant to the act, to have the effect of a process in ejectment. Suppose the legislature had prescribed a particular form of process, could the courts say that another form might be used for the same purpose ? The act requiring an endorsement, has prescribed that as a .particular part of the process, and the courts are bound to see that it is used as a necessary part. The endorsement on the declaration did not sup. ply the omission of the endorsement on the writ. But as the court,, he said, were divided, the plaintiff would not be deprived of the benefit of the verdict in her favor: and, although he thought judg. ment could not be entered up on the verdict for the land* yet, that under the verdict, the plaintiff might defend her title, and establish it in opposition to the defendant, by giving it in evidence in an action oí ejectment to recover the possession, because, he said, the defendant, by pleading lib. ten. had converted the action into areal action, and brought the title in issue.

Bkevard, J.

The first objection to the verdict in this case is, that at the trial the plaintiff did not prove that she was in possession of the land on which the trespass is alleged to have been committed. If the proceedings in the cast can be considered as proper, instead of the proceedings used in the old action of ejectment, and suffix cient not only to draw in question the titles of the parties, and try the right between them, but to authorize the plaintiff, if she should prevail in the action, to recover the land, as well as damages for the trespass, then the objection has no force ; because it is not necessary that the plaintiff in ejectment, (although in legal contemplation he must be considered a0 having been actually ousted,) should prove that he was in possesion when the trespass complained of was committed. But, if tlie proceedings cau only be considered as proper to try the tres* pass or wrongful intrusion, and to recover damages; if the action can* not be regarded in the light of a real action, but as a personal action merely; then, it was undoubtedly incumbent on the plaintiff to have proved possession in herself, and the objection ought to be sustained.

In room of the old method of proceeding in ejectment, to try titles, and recover possession of land, the form of the proceedings in an action of trespass, quare clausum fregit, has been substituted ; but it is expressly declared, by an act of the legislature, that the plaintiff in an action of trespass to try titles, shall endorse on his ■writ a notice to signify that the action is brought, as well for the' purpose of trying the title, as for damages, in order to distinguish1 the action from the common action of trespass for breaking the close. In the present case no such endorsement was made ; and,, therefore, I think the action cannot be regarded as one intended to recover the land, and try the titles of the parties; although in the common action of trespass, quare clausum fregit, the title may incidentally come in question. In order to give to the action for break, ing the close, the force and effect of the old action of ejectment, it appears to me essentially necessary.that the writ should be endorsed according to the direction of the act; and that no other notice, verbal or written, can or ought to be held sufficient or equivalent. This endorsement must be considered as an essential part of the form of the action, and the only distinguishing feature by which it cun be known from the common action for breaking the close. In ac't°n for intruding or committing trespass on land, the land is considered as being in the possession of the plaintiff, who cannot supposed to demand the land of the defendant, but only a com. pensution in damages for the unlawful entry and trespass ; but in the action to try titles, the land itself, the locus in quo. is demanded ; and the plaintiff, if he can substantiate his title, ought to recover the land, as well as damages, and have execution to put him in possession. Without this endorsement on the Writ, no judgment can’ be legally entered up for the land, nor can a writ of habere facias possessionem issue. The verdict cannot authorise any such judg. mem or execution ; it can only entitle the plaintiff to the damages, if any be found, and costs. If the plaintiff should hereafter bring two separate actions of trespass, properly formed, to try the titles to this same land, could the defendant plead, or give in evidence, the present action to bar the plaintiff, under the act which prohibits the bringing of more than two actions of ejectment for the same land 1 1 conceive not. Nor can I imagine any means by which the plaintiff can advantage heiself of the verdict, and recover in the present case, in support of her title, or claim to the land, in question f it itf beyond my reach to see upon what principle of law the verdict in this case can be used in her behalf in an action to try titles,as con-elusive evidence of her right to the land ; when even in ejectment,-the verdict in the first action could not be given in evidence, or pleaded in bar to the second. At common law the plaintiff might' bring ejectment, loties quoties, without prejudice to Ins right, and by our law, two actions of ejectment may be brought for the same laud.

As the verdict for the land cannot, in my judgment, be supported by the form of the action, judgment ought to be arrested, or a ve°-ñire de novo awarded.-

Another objection- taken in the case is, that the plaintiff did not prove any title in Hails, under whom she claims.- The objection to M’Kelvey’s competency, as a witness, was clearly removed by the? release from Hails, to whom he conveyed the land in October, 1805. But this witness was not clear he ever conveyed to Hails prior to 1805, though be inclined to think he had. No witness was produced to prove the execution of any such deed of conveyance, nor was there any evidence to be safely relied on, of the existence of any such deed. To supply the want of evidence to support the feeble presumption arising from M’Kelvey’s testimony, the written agree, ment between Hails and M’Kelvey was admitted, containing M’Kelvey’s promise to convey. It seems to me this evidence was not legally admissible; but if it was, I cannot perceive that it aids the presumption that the land was conveyed; on the contrary, it does appear to me, that this agreement, being in the possession of Hails, or those claiming under him, affords very strong presumptive' evidence to induce a belief that no conveyance, in pursuance of the agreement, was ever executed prior to 1805; for if such a conveyance was executed, how did it happen that the agreement was not given up ? And how has it happened that the agreement remains, if the conveyance was executed, and was destroyed in the manner which has been conjectured. If the agreement was not given up, (and it is certain that it was not,) is it not reasonable to suppose that it was placed wherever the conveyance was? How is it to be accounted for that they did not share the same fate?

The proceedings in equity, I think, could not be properly admitted in evidence, inasmuch as all the parties interested were not before the court of equity; and, therefore, the decree was invalid by the plaintiff’s own shewing. I cannot discover that there was any evidence sufficient to authorize the jury to presume, (hat Hails ever had a legal title to the land in question prior to the year 1805 ; and if he had not, the deed from him to Lehre and wife in 1798, con-vcyed no right.

Another objection to the verdict is, that admitting Hails to have had a good legal title in 1798, when he conveyed to Lehre and wife, yet, as the verdict is in favor of Mrs. Lehre alone for the whole land, it ought to be set aside, inasmuch as the evidence was insufficient to maintain her title to more than an undivided moiety of the land.

This objection depends on the admissibility and force of the evidence which was given of the proceedings in equity. I have already staled my opinion on that point. It does not appear that the devisee, or heir of Dr. Lehre, was a party or privy to those proceedings in equity, and, therefore, as to him, they were ex parte. The plaintiff in ejectment must recover by the strength of his own title. The title to more than an undivided moiety is unsupported by sufficient evidence, even if the title to the other moiety should be allowed. Then, according to a late decision in this court, in the case of Perry v Middleton, the objection ought to prevail; because, at Dr. Lehre’s death, the jointenancy was severed and turned into a tenancy in common ; and the verdict ought to have been according to her title, namely, for an undivided half part of the land, as tenant in common.

Note. A freehold may be given in evidence under the general issue, 3 Johns; Where the title is pleaded, the issue is. on the mere title. Ib. Argument. (Will’s Rep. 221. Trespass is a possessory action founded on the possession merely, and the right need not be decided.)

Ejectment.was never laid'with a continuando; consequently, the plaintiff in such action, could never recover damages-for the mesne profits-. 3 Wils. 120.

When the method of recovering the term by ejectment was introduced,- it became' usual for a man who had a right of entry into lands, to seal'leases of ejeetment thereon, and then the person who next entered on the freehold was art ejector. The convenience which arose from this method* was, that they couldr-try the title toties quoties; whereas, if the plaintiff- was barred in an assize, he was put to his writ of right. Runn. 4.

When the plaintiff had made his lease upon the land, any third person who came thereon; animo possiSendi, was in strictness of "law, an ejector. Runn. 8.

A new trial'may be'*granted in ejectment, as well as brother actions, Where the party applying would suffer by a change of possession. This is an indulgence.which was not formerly allowed, because the injured party might bring anew ejectment. See Kunn. 117. 1 Bur. 395. 4 Bur. 2a25- 3 Bur.12‘25.

The judgment in ejectment is a recovery of the possession, without preju-dicé to the right; as it may afterwards appear, even between the parties. He-who enters under it in truth and substance, can only be possessed according te rights prout lex postulat. I Bur. 114.

By A. A. 1744, P. L. 190, if the plaintiff in any action of ejectment, in case verdict and judgment shall pass against him, or that he suffer a nonsuit, or discontinue, or any otHerways let fall his said action, such verdict, judgment, non-suit; or discontinuance, shall not be conclusive and definitive on the 'part of sueli plaintiff} but at-any time within two' years, the said plaintiff, or any other person or persons claiming by, from, or under him, shall have right,.and be empowered to commence his action for the recovery of the said lands and tenements de novo. And in case verdict and judgment shall again pass against such plaintiff" or that he suffer a nonsuit, &c. a second time, then such second verdict or judgment, &c. shall be finally conclusive, &c. And the right and title of the defendant shall be established against such plaintiff: Excepting persons beyond seas, &c.'

^Pon the whole, my opinion is, that the verdict ought to be set’aside, and venire facias de novo awarded.  