It will be necessary, therefore, to look into the case, and see how far the motion is supported in point of fact, upon either the one or the other of those grounds.
But before I proceed to this, I feel myself constrained, from the course which the argument at the bar has taken, rather than from anything in the case itself, to make a few observations respecting the action of ejectment, as it has been used in this State, from the earliest settlement of the country down to this time. I say I feel myself constrained to do this from the course of the argument, for it has been insisted that the plaintiff in ejectment always has been, and still is obliged, in order to maintain his suit, to show, what the counsel call a complete, substantive, impregnable title, that is, as it has been explained, a regular deduction of title, by deed from Charles II. down to himself, or an exclusive and uninterrupted pos-session in himself and those under whom he claims, formerly for sixty years, then for thirty, and now for twenty, according as the succesive statutes of limitation prevailed; or, in other words, such a title as might be disputed, indeed, in point of fact, but could never be overcome by one superior to it. And by way of fortifying this position, reference is made to former practice, in which it is said such deduction was uniformly made, and always required.
1The writ of right has been abolished in New York and is practically obsolete in nearly all jurisdictions. The possessory actions are now used for the trial of titles. - Ed.
Let us examine this position a little. By the common law, estates of freehold in lands passed by livery of seizin only, that is, by a delivery over of the actual possession. He, therefore, who was in the actual possession of land, was, prima facie, the tenant of the freehold, and had in him the heritable sesina facit stipitem. If he were ousted or dispossessed of this freehold, by one who had no right, he might, without process of law, make a peaceable entry, or, if deterred from that, he might make claim from year to year, which was called continual claim, as near the land as he could, and such entry or claim restored him to his lawful seizin, and made him capable again of conveying, either by descent or purchase. This right of entry, though it might be tolled or taken away by a descent cast, and so, generally speaking, must be pursued during the life of him that made the ouster, or be forever lost, yet it was limited to no particular period or number of years; so that if it was not actually lost by descent or otherwise, the lawful owner might, at all times, restore himself by entering upon the wrongdoer, in a peaceable manner, and turning him out; but if he suffered it to be once lost, he could no longer restore himself by his own act, but must have recourse to his action at law. And, indeed, even where it was not lost, as it but seldom happened that the wrongdoer would tamely submit to be turned out without force, the owner, if his object was to gain the actual possession and enjoyment of the land, and not merely to put himself in a capacity to make a lawful conveyance, was generally obliged to have recourse to such action, and to call to his aid the process of the law, to restore to him that right which he could not obtain by peaceable means without it; so that, in most cases, it may be said he was put to his action, even when his right of entry was not tolled or taken away.
This action might be, in the first place, by writ of entry, in which he undertook to prove his own former possession, and that the defendant, or some one under whom he held, had dispossessed him; to which the defendant might answer by denying the fact of the dispossession, or by showing in himself an older and a better possession; and then, upon the trial, it was adjudged for him who had the clearest right, or it might be, in the second place, after the reign of Henry II. by writ of assize, which went upon the suggestion that the demandant's ancestor had died in possession, and that he was the next heir; and, therefore, directed the sheriff to inquire, by a jury, whether this were so, and, it found for the demandant, the land was immediately restored. But still, even if the demandant prevailed in these actions, it only restored to him his former possession, it decided nothing with respect to the right of property; all that he had to show, in order to maintain his suit, was the possession of himself or his ancestor, and this might be overcome by the defendant showing an older and a better possession; for it never was pretended that the demandants must be such a possession as established the ultimate right; for this either party might afterwards resort to his writ of right. In these possessory actions, therefore, neither the deed of feoffment by which the estate was created, nor the actual livery of seizin upon such deed, were necessarily given in evidence, but the mere possession only. And so, also, after the 29 Car. II., which directed that all conveyances of land should be in writing, and not otherwise, it was not necessary, upon the same principle, to give the writing in evidence, and the reason was that the deed of feoffment and livery of seizin thereupon, in ancient times, and the written conveyance under the statute, related to, and were evidence of, the commencement of the estate, and of the ultimate right only, which was not at all in question; but that they could be no proof of the actual and subsequent possession upon which the ouster was alleged to have been committed, and which was the foundation of those possessory actions, and the only thing to be proved in them, or recovered by them. It is true that those might be given in evidence, and might greatly strengthen the proof of possession, but they were not essential to the maintenance of the action; that depended upon the mere possession.
To these real actions for the recovery of the possession of lands, succeeded, in common use, the action of ejectment. This was not originally devised as a remedy for injuries done to real estate, that is, to estates of freehold in lands, but as a remedy for injuries done to chattels real, such as terms for years, which were considered as mere chattel interests. But then, as one who came into a court of justice to complain that he had been ousted of his term, must necessarily show that such term existed, and that the lease under which he claimed was a good and valid lease, and, of course, that the lessor had a right to make it, the title of the lessor was thereby brought into question as fully and upon the same principles as it would have been in the real action; so that though the action of ejectment got clear of all the intricacy and perplexity of the real action, and so became an easy and expeditious method of trying the title to land, yet it required precisely the same proof of title in sub-stance as the real action did. For though the form of the action may have been changed, yet the great principles of right have not been changed, nor can they be without a total subversion of the whole system of property in land. In a real action, the demandant must show his possession, his ouster, and his right to re-enter; in an ejectment, the lessor of the plaintiff must show the very same thing; - he must show that he has been in possession of the land; that it is now withholden from him, which is an ouster; and that he had a right to re-enter and make the lease in question. I say he must show those things, for the lease, entry and ouster, which are confessed, are the mere form of the action, and having nothing to do with the substantial right. The title, therefore, which lessor of the plaintiff, by the consent rule, is bound to rest upon, and which he is obliged to make out at the trial, is his right of entry (for if he had this right, it is always confessed that he had a right to make, and did make, the lease), a right which, upon the principles of the common law, necessarily results from his having had an anterior and peaceable possession of the lands in question, and their being now withholden from him by the defendant; a right too which cannot be overcome by any subsequent possession, unless it has been tolled or taken away in the manner before mentioned, or is restrained by the statutes of limitation. * * *