
    LEONARD APPLEBY v. JOHN S. OBERT.
    In trespass, on rule to shew cause, why verdict be not set aside, and a new trial granted.
    Proof of possession of the plaintiff, is unnecessary in an action of trespass quare clausum fregit, when in a suit before a justice of the peace, for the same trespass, the defendant pleaded title and gave bond, pursuant to the statute. Such plea admits plaintiff’s possession.
    In such a case, if the defendant plead the general issue, in this Court, it may be stricken out. The only issue to be tried, is whether the defendant had or had not, a legal title to the land trespassed upon.
    ‘ Twenty years’ possession under a written agreement of sale and purchase of the premises, is not adverse, so as to give a title; but is a holding under the party agreeing to sell &e.
    This case was submitted to the Court on the written briefs of counsel, the defendant’s attorney, from ill health, being unable to attend Court.
    This was an action of trespass " quare elauswm ” commenced before a justice of the peace and a plea of title filed by defendant, with bond pursuant to the statute.
    The plaintiff then brought his suit in Supreme Court. Defendant pleaded liberum tenementum. Plaintiff new assigned and defendant rejoined, whereupon issue was joined.
    
      The cause was tried at the Middlesex Circuit, December term, 1838, and verdict rendered for plaintiff.
    The following was signed by the counsel of the respective parties viz.
    Yew-Jersey Supreme Court.
    Leonard Appleby vs. John Sheppard Obert
    
      “ 1st. Whether in case of a suit before a justice of the peace for trespass on lands, &c. with a plea of title set up by defendant, and bond given pursuant to the statute, it is necessary in an action of trespass thereupon commenced in the Supreme Court, and proper pleading filed, for the plaintiff on the trial, to prove possession of the lands.
    2nd. Whether the contract for the sale and purchase of the lands between Robinson Thomas and Henry Obert, accompanied by possession of the lands, ought to have been received in evidence under the plea of liberum tenementum.”
    
    3dly. The pleadings in this case to be amended by the Supreme Court, and made conformable to the rules of pleading in, such cases as this; and all questions to be determined as if the pleadings were amended and made right.
    December 23, 1836.
    
      Signed James S. Nevius,
    
    
      O. Ij. Hardenbergh.
    
    The defendant moves for a new trial and assigns the following reasons viz.
    1st. That the verdict is contrary to law and evidence, and ought to have been rendered for the defendant instead of the plaintiff.
    2nd. Because the Judge at the trial admitted illegal evidence to the jury, viz. a report of commissioners for dividing the real estate of Robinson Thomas deceased, dated 17th June 1823, made to the Orphans’ Court of Middlesex. A certain deed dated 5th of January 1830, purporting to have been made by Griffin Taylor and wife to Leonard Appleby; and divers other testimony which was illegal and contrary to law.
    
      3dly. Because the Judge misdirected the jury, in charging them,, that in this particular case it was not necessary for the plaintiff, in an action of trespass, to prove possession of the premises in dispute, because an action of trespass had been lately pending before a justice between the same parties, in which the defendant in this action had pleaded title and given bond pursuant to the statute. And because the direction of the Judge was in other respects illegal.
    4th. Because the Judge on the trial refused to receive legal evidence on the part of the defendant, to wit, a certain contract in writing, for the purchase of the premises in question, between Robinson Thomas and Henry Obert, dated 20 December 1811, and a certain cancelled note given for part of the purchase money, dated 28th December 1811, with an offer on the part of the defendant to prove possession accompanying the said agreement, for more than twenty years.
    5th., Because the said verdict was in divers other respects erroneous, contrary to law and evidence, and ought to be set aside.
    
      G. L. JSardenbergh, attorney for defendant.
    
      Mr. JSardenbergh, in support of the rule. This verdict is wrong and must be set aside for various reasons.
    1. The Judge erred in his opinion. He ruled that it was unnecessary for the plaintiff, to prove possession, because a suit had been brought before a justice, and a bond given &c.
    This is erroneous. The suit before the justice and this suit are no way connected, nor is one the continuation of the other.
    The plaintiff goes to trial in the higher Court, de novo. Except that the defendant is bound to admit the trespass, there is no difference. The plaintiff must make out his entire ease, 1 South. 170.
    It is true, the defendant is to put himself upon the plea of title, but the plaintiff is not to be put in any better situation by bringing his action, first, before a justice of the peace.
    In trespass it is indispensable to prove possession. Without this the action cannot be maintained. Here the evidence is the other way. The defendant has been twenty-five years in possession. The plaintiff never has been in possession. He attempted to prove possession but failed. 9 John. Rep. 622 Stuyvesent v. Tompkins and Durham.
    
    It is competent for the defendant to shew the plaintiff had not possession, 7 Cowen, 344, Marsh v. Berry, 7 Hal. 357.
    Pleadings and new assignment. Aet Rev. L. 639. 2 Green, 417. Where the cases are collected.
    The legislature by the act, intended merely to give the defendant a right to try his title in a Court of competent jurisdiction, hut did not intend thereby to change the relative rights of the parties.
    2. The judge erred in excluding the evidence. The defendant did put himself upon his title. What is title ? The defendant offered in evidence an agreement for purchase, accompanied by possession of twenty-five years. This made a good title.
    The defendant may shew either title or possession. What is title ? May not possession become such ? Because a suit baa been brought before a justice, is the defendant therefore driven to a documentary title? The plaintiff here could not bring for this land, ejectment, and yet may sustain trespass. We offered a contract for purchase, in evidence. See paper 1. This ought lo have been received. This showed an adverse possession under colour of title.
    This was an executory agreement. The purchase money in part, it was proved, was paid, and after such a lapse of time, payment of the remainder will be presumed. 8 Gowen 609.
    Opposite doctrine in 5 Gowen 74 over ruled in 9 Gowen, 550 and 557. This was a good defence to ns.
    3. At all events, Robinson Thomas, if living could not have brought trespass against Obert; and Appleby could be no better off. The defence was title, and an equitable title is a good defence in an action of trespass.
    4. The plaintiff extended his demand for more than the suit before the justice, and the defendant, therefore, had a right to set up the general issue, and was not confined to his plea of title, 6 Hal. 89.
    5. The plaintiff undertook to shew a paper title.
    This was invalid. A mere release or quit claim. Such a deed given by a person out of possession could convey no title There being no seals to the deed, it can be no conveyance of lands in New-Jersey. 12 John. Rep. 13 and 35, 5 ib. 238; 7 ib. 211; 5 Burr. 2827.
    
      J. 8. Nevius, for the plaintiff.
    The questions for consideration, and the only questions, are embraced in the agreement set forth above, and signed by the counsel of the parties.
    The first of these questions is, whether in this action, it was necessary for the plaintiff on the trial of the cause, to prove possession of the premises (or title in himself until the defendant shall have shewed some title.)
    Upon this plea, the issue is title or no title in defendant. By pleading title he admits plaintiff’s possession, and the act charged as a trespass.
    The 34th section of the small cause act declares this plea to be conclusive evidence that defendant relied on his title, by way of justification. Rev. Laws, 639.
    When defendant puts himself upon that plea, he must abide by it. He takes the cause by means of this plea out of the jurisdiction of a Court competent to try the question of possession, and brings it here to settle the question of title, only. Under the plea of not guilty, before the justice, these questions could be there decided at little expense.
    Upon such plea, possession would have been part of the issue. 1 Pen. 269.
    In trespass guare clausum, ése. the plaintiff need not prove title, because title is not necessary to support the action..
    A mere naked possession, is sufficient. A tenant without title may maintain trespass; for trespass is an injury to the possession, and can only be maintained by him who has the actual possession. 1 John. R. 511; 9 ib. 61.
    If a defendant before the justice, plead title and the cause is removed to Supreme Court, it is an admission of the trespass, and he cannot afterwards plead the general issue. 2 Caines, R. 28.
    Upon plea of liberum tenementum, the defendant, must prove title to the land, to entitle him, to a verdict. 9 Wend. R. 160.
    
      In trespass quare &e. brought in Common Pleas, by reason of plea of title in Justice’s Court, the defendant is confined to his plea of title which admits the trespass. And although he plead the general issue and the cause is tried on that issue, upon the production of the plea of title, the Court should confine him to it, and not require the plaintiff to prove the trespass. 7 Cowen, 334; Marsh v. Berry.
    
    In this case the plaintiff placed himself upon the issue, title vel non, in himself. There is no other issue between the parties. He did not even attempt by his pleading to raise another.
    If the trespass is admitted, the plaintiff’s possession is likewise admitted, for there is no trespass except it be on the plaintiff’s possession.
    
    But if plaintiff’s possession might be controverted by the defendant, under these pleadings, which seems to be yielded by the Court, in the case of Douglass v. Valentine, in this case, the plaintiff’s possession was fully, proved. Various acts of possession at different times were proved. He cut and carted wood off the land, sold wood off it, sold clay off it, and exercised other acts of ownership and possession. 7 John. R. 273.
    The next question presented under the agreement is,
    Whether the Judge rightly, overruled the defendant’s offer to prove an agreement for the purchase of the lands in question, and a possession accompanying the same.
    In this the plaintiff contends there was no error, in the Court.
    The defendant relied upon his title. In support of it, he must produce a legal title, and cannot rely upon a mere equitable title. Such title is no defence in an action of ejectment, where the land itself can be recovered. Much less can it prevail where damages only are sought to be recovered for a trespass. 2 John. R. 221; 8 ib. 487; 2 lb. 321.
    Here, the defendant has not even an equitable title. The article offered, is a mere “ agreement to sell.” The defendant never paid the purchase money, or tendered it.
    He has never entitled himself to a deed. If he ever went into possession, he was a trespasser.
    But as he admits Robinson Thomas’s right, and claims an equitable interest under him, he cant set up such possession, as a title in himself, being adverse.
    
      These are in truth the only questions submitted to the Court, unless a certain state of the case prepared by the defendant’s counsel, and not sanctioned by the Court or agreed to by plaintiff’s counsel, is to be considered.
    From this it will appear, that exceptions were taken at the trial, by the defendant, to evidence of title, offered by plaintiff.
    If that question is now before the Court, the plaintiff insists that the Court was right in overruling the objection.
    1. The evidence was not offered with the view, to establish a title in the plaintiff, in the first place. But to shew the limits and extent of his possession ; the documentary evidence was offered in connection with a map.
    For this purpose it was clearly, admissible.
    2. Suppose it was offered to prove title, in plaintiff. Although not necessary for him to prove title, yet if he chose to do so, it would not vitiate the verdict.
    3. After the attempt on the part of defendant to prove title, it was clearly competent for plaintiff, to exhibit evidence of his title. And if the evidence was lawful on the trial, it matters not whether it was given before the defence was made, or after.
    If these papers were rightfully received to prove title; what possible exception can exist to the report of commissioners appointed by the Orphans’ Court ?
    It is not true that there were no seals to the deed of Griffin Taylor to the plaintiff. This deed, was executed in Ohio, and scrolls were used for seals. The law of Ohio warrants this practice. It was duly acknowledged, and as between the grantor and grantee, the deed is good.
    The defendant can take no exception to it.
    
      James 8. Nevius, attorney of plaintiff.
   The opinion of the Court, was delivered by

Ford, J.

The plaintiff brought trespass before a justice of peace, for entering his close in North Brunswick, breaking his fence, spoiling his grass, and saplings, and carrying away ten cords of wood. The defendant appeared, and pleaded title in one Henry Obert, by whose command he entered the close &c. and tendered a bond as the statute directs. To an action in this Court, for the same trespass, the defendant appeared, and pleaded title in Henry Obert as before, and also pleaded, not guilty. The plaintiff then ¡nade a new assignment, describing the close as lot No. 2. F, on a map recorded in the surrogate’s office, of the partition of lauds late the property of Robinson Thomas, deceased, which he averred to be the same dose. The defendant pleaded title in this close, in Henry Obert, as before, and also the plea of not guilty. At the Circuit, a verdict was taken for the plaintiff, ultimately, by consent, for a small sum, and on an agreement submitting certain points to the Court. One is, that if the pleadings are wrong, the Court shall amend them, and make them as they ought to be.

In the case of Westervelt v. Marinus, 2 Pen. Rep. 693, nearly thirty years ago, this Court decided, that a justification by plea of title, was an admission of the trespass, in the Court below; and in an action here for the same cause, the trespass cannot be disputed; wherefore they ordered the plea of not guilty to be stricken out. Ever since that time, it has been disallowed. If the defendant means to deny the trespass, or the plaintiff’s possession, the Court below is competent, and those matters must be tried there. Gregory v. Kanous, 6 Hals. 62. The intent of the legislature was, and this Court has so declared, that the proceedings here should be upon the same issue that was made below; that the cause is removed to try the title only.” Ellet v. Pullen, 7 Halst. 362. The new assignment does not enlarge the complaint in this case, it only gives a better description of the close, averring it to be the same • and the defendant treats it as the same, by pleading title to it, as before. Therefore in pursuance of the principle so fully, and so long established in this Court, the pleas of not guilty, must both be stricken out. The only issue to be tried, is, whether Henry Obert had or not, a legal title to enter on the close.

The next point is, whether under this issue, the plaintiff was bound to prove his possession. In the declaration, he alleges it to be his inclosure. “ A special plea in bar admits the truth of the declaration.” Gould’s Plead. 45, sec. 39; Id. 342, sec. 70, 72. The plaintiff had no occasion to prove what is admitted by the pleadings.

The next point is, ought the agreement between Robinson Thomas and Henry Obert, for the sale and purchase of the land, fo have been admitted in evidence. It was not a deed, nor did it convey any legal estate to Henry Obert; on the contrary, it shewed that the legal title was still in Eobinson Thomas or his heirs; therefore it. was no evidence of title in Henry Obert, and the Court so informed the jury.

The defendant’s counsel admitted in his opening, to the Court and jury, that Henry Obert had no deed for the close, but said he had a good legal title by twenty years adverse possession. He then proved the signatures of Thomas and Obert, and that when Thomas delivered the agreement, he told Obert he might take possession. The agreement was then read by permission of the Court, as competent evidence of the time when Obert’s possession first began, and of the premises on which he entered. He was to pay three hundred dollars for the laud, and had given his note to Eobinson Thomas for one hundred dollars thereof, as appeared by an endorsement; but evidence of payment of any part of the residue was not offered; the defendant relied on presumption of payment, after the lapse of time from the date of the agreement, which was in 1811. The Court directed the jury, that the agreement shewed a holding under Eobinson Thomas, by his permission; that it was not a possession adverse to him, and its continuance for twenty years, would not give a legal title. To make out an adverse possession, strict proof must be made that the first possession was taken under a claim hostile to the real owner.” Adams on Eject. 47, note 4, and cases there cited. As the defendant gave no evidence of title in Henry Obert, either documentary or possessory, and shews nothing more than an equitable interest which cannot maintain his issue, there seems to be no ground for ordering a new trial, and therefore the rule to shew cause must be discharged.

Hornblower, C. J. and Eyebson, J. concurred.

Mule discharged.

Cited in Campfield v. Johnson, 1 Zab. 84.  