The right of the lawful owner, therefore, to enter upon the wrong-doer in this extra-judicial manner, and so to restore himself to his possession and make leases, etc., from the first settlement of the province till the act of 1727, was wholly unlimited in point of time; from that time till the act of 1787 it was limited to sixty years; after that, in some cases, to thirty years; and since the act of 1798, in all cases, with the usual savings, to twenty years; and as this right of entry is the foundation of the action of ejectment, that action, of course, was limited in the same manner, and not otherwise. But that limitation is merely a limitation of the time within which the entry must be made, and by no possible construction, a designation of the time during which the possession must have continued. Can any book case be found in which, since the 21 Jac. 1, a possession of twenty complete years has been holden necessary to maintain an ejectment? None such can be found. One comes into a court of justice and says he has been in possession of lands for five, ten, or fifteen years, and that the defendant has turned him out, and holds him out, shall he be told he has no redress because he has not been in twenty complete years? And shall the defendant be justified in withholding from him his peaceable possession, thus tortiously and forcibly gained? Suppose another should enter and turn him out, and another him, shall the last always hold? To what would all this lead but a mere trial of strength, in defiance of law; for it is directly in the tooth of that universally acknowledged principle, that peaceable possession itself is a title which shall never be disturbed but by one who has a better right, and which, therefore, the law will carefully protect until that right be shown in a judicial manner. And whether that possession had lasted five years, or ten years, or twenty years, the law sees no difference. Upon what ground, then, is this notion of possession of twenty complete years founded? Certainly the 21 Jac. 1, says no such thing - our act of 1798 says no such thing; they merely limit the time of entry but require no possession of twenty complete years, for this or any other purpose. Well, if those statutes do not require it, what is it that does require it? Is it the common law? Let us, then, lay the statutes of limitation out of the question, and then let us inquire what length of possession did the common law require. Does it say anything about twenty years, or thirty, or fifty, or even three score years ? No. Time immemorial was its only limitation - time whereof the memory of man runneth not to the contrary, and beyond which, of course, no proof could possibly reach. But will any one say, that a possession for time immemorial was necessary to support an ejectment or other possessory action? No one will say so. It is true that in early times it was customary, in actions of ejectment, to deduce title from the general proprietors, and thereby to cut off all pretensions of the defendants at once, and that this continued to be the custom up till the Revolutionary War, and for some time afterwards; and it is true, too, that this is done even till this day, when it can conveniently be done, because it is by far the shortest and safest course, for it stops the mouth of the defendant in limine. But the conclusion that is drawn from this, to wit, that the ejectment was put upon the same footing as the writ of right, and required the same proof and had the same consequences, is not true. It never was put upon the footing of the writ of right; it never was conclusive upon the right of property; it never did necessarily require such deduction of title; but, on the contrary, always depended upon, and was governed by, its own proper principles; and, except in the cases I have mentioned, kept within its own proper bounds. I never heard of a nonsuit or a decision made against the plaintiff, upon the grounds that he had not made such deduction of title, except in one case from Sussex, 1 think, in the Court of Errors at Perth Amboy, and in that, probably, there might have been intermingled other operative reasons, not much connected with the case, and not now easy to be traced.
There has been cited from one of the books, Espinasse (I think), a passage to this effect, that proof of possession within twenty years is not only necessary to support the title of the lessor of the plaintiff, but such possession for twenty years, without interruption, shall be a good title in itself to recover in ejectment without any other; and from this it has been argued that a possession of twenty years, at least, without interruption, is necessary to maintain this action. But a little attention to the author, and to these cases from which he deduces his position, will show satisfactorily that this is not the meaning. He means to say, and does say, that a possession within twenty years is sufficient to maintain an ejectment, unless an older and a better possession be shown, but that a possession for twenty years, without interruption, under the 21 Jac. 1, gives a right of possession, than which no better can be shown, and which cannot be overcome in this action, for that the statute cuts off the right of entry from the defendant as well as from the plaintiff, and, therefore, if he has suffered his right to sleep for twenty years it is gone, and he could have had no right to make the entry which is the commencement of his present possession. The truth is, that all possessory actions are founded upon a peaceable possession in the demandant or plaintiff, and those under whom he claims; and such possession, without regard to the length of time it may have continued, is sufficient to maintain such action, and can only be overcome by an older or better right.
I conclude, then, that the lessor of the plaintiff, in an action of ejectment, must always count upon and show a possession of the land within the time to which the right of entry is limited, and under our act of 1798, within twenty years next before the action brought, otherwise he is barred; but that he need not show a possession of twenty complete years, or of any other number of years, further than is necessary to constitute a full and peaceable possession; and that this being merely a possessory action and the possession to be proved not being intended to establish the ultimate right, and not depending for its validity upon the manner in which it commenced, but being a mere matter in pais, it may be shown as well without deed as with it, though, when without it, it will always be looked upon with greater jealousy and be overcome with great ease. * * *