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Brewing Co. v. Meier, 163 Ill. 424 (45 N. E. Rep. 264). The defendant cannot show that the deed from him under which the plaintiff claims title was procured by fraud. v. Eckhart, 107 Mich. 465 (65 N. W. Rep. 274).

Gale

Sec. 214. Equitable defenses-Vendee in possession under written contract. Virginia Code, § 2741, provides that a "vendor, or any claiming under him, shall not, at law any more than in equity, recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing, stating the purchase and the terms thereof, signed by the vendor or his agent, and there has been such payment or performance of what was contracted to be paid or performed on the part of the vendee, as would in equity entitle him, or those claiming under him, to a conveyance of the legal title of such land from the vendor, or those claiming under him, without condition." It is held that this statute "limits the right of defense on the basis of an equitable title to a vendee in possession under a contract in writing, stating the purchase and the terms thereof, signed by the vendor or his agent, where there has been such payment or performance of what was contracted to be paid or performed as would, in equity, entitle him to a conveyance of a legal title of the land from the vendor." Jennings v. Gravely, 92 Va. 377 (23 S. E. Rep. 763).

Sec. 215. Answer-Equitable defenses-Inconsistent defenses. The Kentucky Statute, Civ. Code, § 125, subd. 2, provides that in an action for the recovery of land, "the answer of the defendant must state whether or not he claims it or any part of it." Applying this statute it is held, "without such statement, if the defendant claims the land he is sued for, he cannot be allowed to avail himself, in defending the action, of any advantage derived from any claim he may have to the land. He cannot be allowed to assert his title to the land, in such an action, as against the conflicting claim of the plaintiff, on the mere denial that the plaintiff's title, or claim of right of possession, is not good." Brent v. Long, 99 Ky. 245 (35 S.W. Rep. 640). Where an answer in ejectment denies every allegation of the complaint "except as herein.

after stated" and then admits holding possession of a certain number of acres of the land, it does not thereby admit that the plaintiff owns the balance. Stites v. Gater, Cal. (45 Pac. Rep. 185). An answer setting up an equitable defense should be framed with great particularity. Rivers v. Rivers, 38 Fla. 65 (20 So. Rep. 807). In Illinois it is held that in an action of ejectment "legal titles alone are considered and they can only be transferred by descent, devise or conveyance, and not by an estoppel in pais which cannot be made available in an action at law. Hayden v. McCloskey, 161 Ill. 351 (43 N. E. Rep. 1091). The Mo. Rev. Stat. 1889, § 2050, provides that "the defendant may set forth by answer as many defenses *** as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." Under this statute it is held that in ejectment the defendant may set up the equitable defense of contribution. McCollum v. Boughton, 132 Mo. 601 (34 S. W. Rep. 480; 35 L. R. A. 480). A defendant who claims the land on account of having performed the conditions of a parol gift of it may set up such equitable title without asking for specific performance. Code, § 3189, applied. Ogden v. Dodge Co., 97 Ga. 461 (25 S. E. Rep. 321). In North Carolina it is held that a tenant cannot, under the general issue, make inconsistent defenses to an action brought by his landlord to recover possession. Fayetteville Waterworks Co. v. Tillinghast, 119 N. C. 343 (25 S. E. Rep. 960).

Ga.

Sec. 216. Practice in ejectment-Particular cases. The action may be dismissed by the plaintiff at any time where the defendant's only defense is a plea of not guilty. Bleckley v. White, 98 Ga. 594 (25 S. E. Rep. 592). As to amendment of pleadings where action is brought in the fictitious form. Burbage v. Fitzgerald, 98 Ga. 582 (25 S. E. Rep. 554). Where the withholding of the real estate has been unlawful, nominal damages may be given even though there be no proof of damages. Hahn v. Cotton, 136 Mo. 216 (37 S. W. Rep. 919). The law of ejectment in Florida in force up to and until the enactment of February 22, 1881, of chapter 3244, did not require the verdicts or judgments in such suits to state either the quality or quantity of the plaintiff's estate in the lands

recovered, nor to give any description of the land recovered. Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190 (20 So. Rep. 255). Alabama Code, §§ 2702-2705, applied-suggestion of three years adverse possession to secure allowance for improvements. Newsom v. Guy, 109 Ala. 305 (19 So. Rep. 448). Where a verdict is for part only of the land sued for, the boundary of the part recovered should be designated. The verdict must be certain in itself or must refer to some standard by which to ascertain the land so found. Slocum v. Compton, 93 Va. 374 (25 S. E. Rep. 3). Defendant in ejectment may, to sustain a judgment on appeal, for the first time, raise the question that the description in the complaint is fatally defective. Tracy v. Harmon, 17 Mont. 465 (43 Pac. Rep. 500). Under the twenty-fifth rule of the superior courts of Georgia a party will not be permitted to defend an action of ejectment unless he admits that he was in possession of the premises at the time of the commencement of the suit. Snipes v. Parker, 98 Ga. 522 (25 S. E. Rep. 580).

ance.

Sec. 217. Proof-Plaintiff's title-Defendant's possession. In actions of ejectment the plaintiff must recover upon the strength of his own title and not upon the weakness of that of his adversary. Omaha Real Estate & T. Co. v. Reiter, 47 Neb. 592 (66 N. W. Rep. 658). This rule does not require the production of a perfect chain of title from the original source, as against one wrongfully in possession. Goodwin v. Markwell, 37 Fla. 464 (19 So. Rep. 885). The plaintiff must trace his title back to the ultimate source of title, or to a grantor in possession at the date of his conveyFlorida So. Ry. Co. v. Burt, 36 Fla. 497 (18 So. Rep. 581). Under North Carolina Acts 1895, ch. 119, § 66; Acts 1887, ch. 137, § 74, which make tax deeds prima facie evidence of title a plaintiff in ejectment may recover merely on proof of a tax deed, no evidence of title being given by the defendant. Moore v. Byrd, 118 N. C. 688 (23 S. E. Rep. 968). In Nebraska it is held that a plaintiff in ejectment in order to recover, must show his legal estate to the premises for which he sues; but the evidence of this legal estate need not be by perfect legal paper title; he is not required to prove title as against the whole world, but it is sufficient if he proves

good title as against the defendant. The plaintiff may recover upon a title predicated upon adverse possession. Lantry v. Wolff, 49 Neb. 374 (68 N. W. Rep. 494). It is not sufficient proof of title for the plaintiff to show a deed to himself from one who is apparently a stranger to the paramount title, and who is not shown to have ever been in possession of the premises conveyed. Bleckley v. White, 98 Ga. 594 (25 S. E. Rep. 592). A prima facie title is sufficient until overcome by a better one. Allison v. Snider, 118 N. C. 952 (24 S. E. Rep. 711). It is held that the fact that the defendants claimed title to the land at the time the suit was commenced may be inferred from their subsequent employment of counsel to assert title in such suit. Whiteley v. Whiteley, 110 Mich. 556 (68 N. W. Rep. 241).

Sec. 218. Proof-Possessory title. Proof by plaintiff of a prior possession by him is prima facie evidence of title as against the defendant who is alleged to be wrongfully in possession. Zillmer v. Gerichten, 111 Cal. 73 (43 Pac. Rep. 408). Plaintiff must prove his title, but this may be done by showing that his ancestor was in possession of the land claiming to be the owner under color of title. To overcome this prima facie case it is not sufficient for the defendant to show a paper title which is not derived either from the government or from one in possession claiming ownership. Weaver v. Rush, 62 Ark. 51 (34 S. W. Rep. 256). A plaintiff in ejectment may recover upon his own prior possession or that of his ancestor, against one who does not show a better right to the property; and in such case the mere belief of the defendant that he purchased a good title will not, unless supported by evidence showing title, or adverse possession for the requisite period, suffice to defeat the plaintiff's action. Burbage v. Fitzgerald, 98 Ga. 582 (25 S. E. Rep. 554). When a plaintiff in ejectment shows no other right of recovery than the presumption of title arising from possession, the rule is that the defendant may defeat the suit by showing that he or those under whom he claims had another possession anterior to that upon which the plaintiff relies. Nashville, C. & St. L. Ry. v. Mathias, 109 Ala. 377 (19 So. Rep. 384).

Sec. 219. Judgments in ejectment. A judgment in ejectment is sustained by findings which show title in the plaintiff and that, on a certain date, the "defendant did oust and eject plaintiff from possession of said (premises), and has ever since wrongfully and unlawfully withheld said possession from plaintiff." McCarthy v. Brown, 113 Cal. 15 (45 Pac. Rep. 14). The right to object to a judgment of awarding possession of land on account of an uncertainty or indefiniteness in the description thereof is waived by a failure to call the attention of the court to the defect. Davis v. Goodman, 62 Ark. 262 (35 S. W. Rep. 231). A judgment of ejectment against a husband is conclusive on the rights of his wife through him but does not affect her rights in the land under a former husband. Mc Connell v. Day, 61 Ark. 464 (33 S. W. Rep. 731). Where in an action for possession the defendant's only rights are in the nature of an easement, and the plaintiff has the fee, the latter is entitled to judgment subject to the former's easement. First Nat. Bank v. Morrison, 88 Me. 162 (33 Atl. Rep. 784).

Sec. 220. Attorney's fees in actions of ejectment against a railway company-Constitutional law-Class legislation. The provisions of the Michigan general statute, 1894, §§ 2660, 2661, allowing the plaintiff reasonable attor ney's fees in actions brought under the statute to recover pos. session of land taken without compensation by a railway company for its right of way, are constitutional. Cameron v. Chicago, M. & St. P. Ry. Co., 63 Minn. 384 (65 N. W. Rep. 652). The court say: "Class legislation, discriminating against some and favoring others, is prohibited, but legislation is not prohibited either by the state or federal constitution, which, in carrying out a public purpose, is limited in its application, if, within the sphere of its operation, it affects alike all persons similarly situated. Barbier v. Connolly, 113 U. S. 32 (5 Sup. Ct. Rep. 357). The legislature, however, cannot adopt a mere arbitrary classification, even though the law be made to operate equally upon each subject of each of the classes adopted. The classification to be valid, must be based upon some reason of public policy, growing out of the condition or business of the class to which the legislation is

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