
    DEN on the DEMISE of ANN B. POLLOCK against KITTRELL.
    Atetiancy createl until the lessee tfcrs. Wivre the Plaintiff diet'"but"the statement of the shows that he had no title, a new trial must be granted. But if the merits appear to j>e w.th the Painuli; the Court \nll give him leave to add other counts.
    THIS was an ejectment tried before Daniel, J. at Bertie Superior Court, where the jury, under the Charge Court, found a verdict for the Plaintiff. The title ■ . was regularly deduced from the patentee, whose devisee, George Pollock, exchanged .the land with the lessor of the plaintiff for part of her dower. It did not appear, at the trial, that any written conveyance was made to the lessor of the Plaintiff, nob that she was ever actually in possession of the land, possessed by the' Defendant; but this latter objection was not made till after the trial. Upon a motion for a new trial, the Court was of opiffion that a tenant at will can maintain an ejectment; and overruled the motion for a new trial, made on the ground of want of possession in the lessor. ‘
    The two questions submitted to this Coürt are, Whether a tenant at will can maintain an ejectment? and^ Whether a new trial ought" to be granted, on the facts stated? and if granted, Whether upon permission to the Plaintiff to add new counts ?
    
      Hogg, for the Plaintiff. The lease stated in a declaration, is a mere fiction, and never allowed to control the justice of the case. A tenant at will, may maintain eject-jrient.
    
    No other point of law was' raised at the trial; the merits, after a laborious investigation of boundary, lyene clearly with the Plaintiff; and the objection of her not having had possession, was not suggested till after the yerdict.
    
      
       Rep. 26 8 Term. 4 Tenn. 650
    
    
      
       Daniel, J. gave no opinion.
    
   Taylor, C. J.

I think it may properly influence the Court to' impose terms on the Defendant, when a new trial is granted, that the Plaintiff’s title, on the score of possession, was not objected tó at the 'trial; bat when a statement of facts is set forth in the record, from which the conclusion of law is, that the P^binflff has no tide, we are bound so to adjudge, by granting a new trial. Now, although’a tenant at will may maintain an ejectment, yet no person’ can be Such tenant, without entering upon the land, his sole right to which consists in enjoying the land by consent of the owner. For many purposes, the lease is considered as fictitious ; but' it is always essential, that it should appear that the lessor of the Plaintiff had a right in him when the lease was made, for this is- the very question to be tried in the ejectment. There ought, -therefore, to be a new trial; but, coi^idering the manner in which the objection is made, the Plaintiff must have leave to add any other counts to the declaration, which he thinks fit.

Ruffin, J.

The case states, that the lessor of the Tlaintiff neyer entered into the lands proved on the trial to be in the Defendant’s possession ;—and it does not appear, by express statement, or by any sufficent implication, that she was possessed of any of the lands covered by the patent under which George Pollock claimed title. Consequently, the first question for the opinion of this Court does notarise upon the facts stated in the record. It cannot be material to the Plaintiff whether a tenant at will can maintain ejectment, if the lessor of the Plaintiff was not such a tenant. A tenancy at will cannot be created, until by force of the lease, the tenant obtains possession. Before entry, the lease is a bare contract. Since, therefore, the lessor of the Plaintiff had no title, she ought not to have obtained a verdict; and the Court is bound to take notice that the Plaintiff hath not made out a case in point of law, on which he can recover, although the Defendant’s counsel shall not make any objection. There must, therefore, be a new trial. But, since from the verdict, we are to presume, for the present, that the merits are for the Plaintiff, it would be unjust to favour the Defendant so far as to allow him*an opportunity of a second investigation of them, but upon such terms as will enable the Plaintiff tcPgo to trial upon the merits. The new trial must consequently be granted upon the terms, that the Plaintiff may add such counts upon other demises as may be thought proper.

The B£st of the Court concurred.  