
    Doe d. William Bright v. Rebecca Stephens.
    Possession is not necessary to enable a party to convey by deed a title to land in this State.
    No inclosure necessary to constitute a holding by adverse possession.
    If a party, after suffering judgment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length of possession prior to it will avail him in a second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of it.
    Action of ejectment for a vacant lot in the city of Wilmington. The premises in question had originally belonged to a person by the name of Caleb Way, in 1802, and afterwards became the property of one Isaac Jones by purchase at sheriff’s sale in 1803, to whom the plaintiff traced his title through sundry intermediate conveyances, produced by him in evidence, on which he relied to establish his legal title; as also upon a former recovery, in 1846, in an action of ejectment, at the suit of Edward Pennell and others, heirs-at-law of Deborah, a daughter of Isaac J ones, against the defendant, for an undivided third part of the lot; and on a further recovery by himself in an action of ejectment, in 1849, against the defendant, for the whole of the lot, in which he obtained judgment by default against her; after which she voluntarily relinquished and abandoned whatever possession she had had in the premises, until a short time previous to the commencement of the present action.
    The defendant, on the other hand, relied upon an adverse possession of the premises for twenty years; that the several grantors in the respective conveyances produced in evidence on the part of the plaintiff, and through whom he had traced his legal title back to Isaac Jones, in 1803, were all out of possession of the premises when their deeds were executed; and upon the fact which appeared in evidence, that Isaac H. Jones, to whom one undivided third part of the lot had descended on the death of his father, Isaac Jones, had afterwards conveyed the same by deed to certain trustees, in trust for himself and his family; and although the trustees named in the deed had subsequently been removed from their office of trustees under the deed, and Bright, the plaintiff, had been appointed trustee, instead of them, by the Court of Chancery, yet no deed had been exhibited, or had ever been executed by the removed trustees to Bright for the estate vested in them by the deed of Isaac H. Jones in the oné-third of the premises; and that, consequently, the legal title to that undivided third part of the lot at least was still outstanding in those persons, and was not in the plaintiff.
    
      Johnson, for the defendant:
    The defendant had been in the undisturbed possession of the premises for more than twenty years; and as 'the parties from whom the plaintiff* derived his title, so far as he had shown any, were all out of possession when their respective deeds were executed, they conveyed no legal title to him in the premises; and cited, in support of the principle, Adams on Ejectment, 43 (note); 2 Hill’s Abr. 411; 4 Kent’s Com. 446, 447, 448; Williams v. Jackson, 5 Johns. Rep. 489; Everard et al. v. Beaumont, 7 Mass. Rep. 76; Walcott et al. v. Knight et al., 6 Mass. 418; Revised Code (Delaware Laws), chap. 430, sec. 2.
    
      D. M. Bates, for the plaintiff:
    If the principle asserted on the other side is the law of this State, how did it be- - come so? What statute, or what judicial decision had been cited in support of it in this State, as might be done in England, in New York, and in some other States ? The invalidity of a conveyance by a party out of ppssession was a mere consequence, .and not a rule of the feudal tenure; and a person out of possession under that system had no estate in the premises, but a mere right of entry. Another reason of it was in the mode of conveyance by feoffment. A feoffment could not be made without livery of seizin; and livery of seizin could not be made without actual possession. He denied, however, that the principle assumed on the other side had ever been held to be law in this State, and was proceeding to cite authorities on the point, when the Court informed him that it was not necessary, as the principle had never been ruled or recognized as law in this State.
    In regard to the defence of an adverse holding set up on the other side, it must be with the assumed right of ownership over the properly, and continuous, without interruption, for twenty years, and not an occasional use of the property. There should also be a real and substantial inclosure of the premises, and not a slight and temporary one. 2 Johns. Rep. 283; 7 Mass. 331. The former recovery of the premises in ejectment by the plaintiff by default, followed as it was by the voluntary abandonment of the possession by the defendant, would give the plaintiff a good primd facie title as against the defendant, and would entitle him to recover in the present action, unless she showed a legal title. Jackson v. Rightmire, 16 Johns. 324; and Jackson v. Walker, 7 Conn. 637.
   The Court,

Wootten, J.,

charged the jury: That it was incumbent upon the plaintiff to establish a good and legal title to the premises in controversy in himself, and that he could not recover on any defect or deficiency which might appear in the claim or title of the defendant; but it was not necessary for the plaintiff to prove, according to the "principle of law as long recognized and established in this State on the subject, that the parties under whom he claims were in actual possession of the lot, or any portion of it, at the time when they sold and conveyed their interest to him, provided the jury were satisfied, from the evidence before them, that such parties had a good title to the premises at the time of their sale and conveyance to him; for the principle of the action, as recognized here, does not require possession of the premises by the grantor in order to convey a legal title to land in this State. If it appeared that Isaac H. Jones and wife had conveyed by deed his interest in the lot to Wyant & Moore, his former trustees, and no deed had been shown from them to Bright, the plaintiff and the present trustee, for that share of the lot,, he would not he entitled to recover Isaac H. Jones’s undivided third part of it, notwithstanding the removal' of Wyant & Moore, and his own appointment as trustee by the Court of Chancery, for the legal title to that part of it would be still outstanding in the former' trustees, and would not be in the plaintiff.

But the defendant relies on a continuous adverse possession of the whole lot for more than twenty years. If that had been shown it would entitle the defendant to a verdict without proof of an actual and substantial inclosure of the premises; hut it must appear to have been an actual and uninterrupted possession for twenty years at least, inconsistent with and adverse in its character to the claim and title of the plaintiff. If the jury were satisfied, from the . evidence, that after the recovery of judgment by default in the action of ejectment, in 1849, by the plaintiff against her, the defendant had relinquished or abandoned the possession, although the plaintiff had not entered into it, she had not shown such a continuous adverse possession, preceding the commencement of the present action, as the law required, and the plaintiff would be entitled to recover.

The jury could not agree, and, after being out a long time, were discharged.  