#### Den, on the demise of the heirs of Mordecai and others, v. Oliver.

From Wake.

The general rule of ejectment is, that defendant must be proved to be in actual possession, notwithstanding the consent rule; but if a defendant, in a conversation before suit brought, admits himself to be in possession, and enters himself a defendant with a view of trying the title, upon proof of such admission, the action so far a"S proof of defendant’s possession is necessary, is maintainable.

Tras action of ejectment was tried in the court below before Norwood, Judge.

On tiio trial, a grant was produced to one Mernathf, covering the lands in dispute, and a title regularly deduced under the grant to the lessors of the plaintiff. A witness was then called to prove that the defendant was in possession, or claimed title to the lands. The testiino- . ny of the witness was, that ou a survey of the lands before any action brought, Mordecai and the defendant being both present, the defendant declared that if suit was to be brought he wished it done at once. Mordecai then said to him, if you will go upon the land and cut dowii a sapling or a bush, I will sue you immediately; to which defendant replied, there was no use for any such thing, for that he hud been using the land for a length of time, and claimed it as his own. In a few weeks after this conver-jsation the present action was brought. One of the les*480sors was twenty-two years old at the time the actiovrwas brought; the other lessors were more than twenty-four. They derived title by descent from Henry Lane,' the grantee from Ibernalhy, who died in 1797. ‘The lands were conveyed to Henry Lane by deed in the year 1787, soon after the grant, arid he' hád lived upon the land to his death, and his heirs after him up to this time. There was no actual possession by him and his heirs of any of the land covered by the deeds of both parties.

The defendant claimed under a grant to one Hilliard, of more recent date than that*wider which the, plaintiff claimed. The grant to Hilliard lapped on the grant to Mernathy, and covered the land in dispute. Hilliard had claimed a part of the lands covered by his deed, and which is not now in dispute,' and remained 'in- possession*more than'Seven'years. Hilliard’s possession had terminated by his sale of the premises about twenty-five years past, and had not been kept up by any other person. -The defendant'deduced regular title from Hilliard, and showed by evidence that about filteen years before the action brought, while the lessors of the plaintiff were infants, he had cut timber off the land, had had hog pens erected, and had been in the practice of feeding his stock at the pehs upoii the land up to the time of action brought; that in one instance, during the infancy of all the lessors of the plaintiff, while workmen were getting timbers for the jáil, tbtey erected temporary cabins for their shelter- and comfort, in-which they slept, but abandoned them as soon as all • the timbers were finished, - which was about one year.

The J ftdge below instructed the jury* in substance, that the possession to ripen into title under*the act of limitations, must be an actual possession; - and -that the defendant’s possession,' as above stated, was not sucli an one as would be-Sufficient to give title under that statute. Put that'-it was not "necessary there should1 be an actual •possession in this case to'maintain ejectment; that if - the-*481defendant claimed to be in posession, or Claimed the lands in controversy, and entered himself a defendant in the ac- ‘ „ . . . . , , „ tion with -a view-of maintaining such claim, that was sufficient to enable the plaintiff to maintain the present action.

Under these instructions, the-jury returned a verdict for the-plaintiff ;= and a motion was made-for a new trial on the ground of misdirection; which" being denied, and judgment rendered for the plaintiff, the defendant appealed to this court.

Ruffin, for the appellant,

contended, that an actual possession was necessary; that the action was brought to recover possession, and was founded on an ouster; and to show, that defendant must be proved to be in the actual possession notwithstanding the consent rule, he cited 1 Lava Repos. 274. -

Scowell, contra.

Ejectment being an action-founded «pon fiction, and invented to try the -right to -possession, nothing is considered1 in the determination of the cause, but the right the party-lias.to the- possession. The possession, of the1 defendant is in- no-wise necessary,-but where it is resorted to in the consent Pillé for the purpose Of identifying what lands the defendant means to contest the right to; for as tó his entry upon the lands in ¡dispute, and-as to the'ouster of the plaintiff* ¡these- am admitted- by-the consent rule; and the Courts havfe held, that where the party enters into the consent rule, and pleads- n-ot guilty as to all the premises in his possession,-it would be a surprise upon him to claim' a- verdict-for any other-lands, because the defendant «never intended to «controvert the title of any, farther than his possession. -And this is all that the rule means when it says, the plaintiff must prove the defendant in possession- Now «here itappears- that the defendant was under no surprise at-the trial; the title of no other lands than those in dispute formed the ground of the verdict} the defendant claimed to be in possession of *482them; insisted upon the benefit of the act of limitations, and the whole evidence on both sides was in reference to them. Suppose the consent rule had been, that defendant enters into the common rule as to all the lands covered, by both patents, that is, by the lapping of plaintiff’s and defendant’s patent, would it be contended that in such a case, plaintiff must prove defendant in possession? The very design of the confession of lease, entry and ouster is to prevent such necessity.

Ruffin, in reply.

Possession in the defendant must be proved. (7 Term R. 327.) If, as is contended, possession need not be proved, then it is in the power of a plaintiff to subject a defendant to two sets of costs for the same trespass: he recovers first in an action of ejectment for a mere trespass, and that recovery is conclusive evidence to entitle him to recover again for the very same trespass.

Hall, Judge.

In the case of Alberton v. Redding’s heirs, (1 Law Repos. 274.) the Court decided, that in the action of ejectment, it was incumbent on the plaintiff to prove the defendant in actual possession of the lands sued for, because it was presumable that the defendant was not so well acquainted with the boundaries of the land set forth in the plaintiff’s declaration, as the plaintiff was with the defendant’s actual possession. I approve of that decision; but the present case is different from it. In this case, the Judge told the jury that if defendant claimed to be in possession, or claimed the lands in controversy, and entered himself a defendant with a view of maintaining such claim, that was sufficient to maintain the plaintiff’s action; by which I understand the Judge to say, that if the defendant admitted himself to be in possession of the lands sued for (not by entering into the common rule) by proof made for that purpose, quoad hoc, the action was maintainable. Of this opinion was the rest of the court, fend .

The judgment was aeeirmed.