#### Doe on the demise of DAVID HIPP v. CHAMPION FORESTER.

Where a declaration on ejectment, included the whole of a tract of land, and the evidence shows, that when the suit was brought, the lessor of the plaintiff was in possession of all but a small parcel in the possession of the defendant, to which the former failed to show title, it was Held, that it was not necessary for defendant to have made a disclaimer, in order to prevent a judgment against him for the land outside of his possession.

The rule in ejectment is, that the plaintiff cannot recover, without showing a better title than the defendant, to all the land of which the defendant is proved to have been in possession.

Action of ejectment, tried before Bailey, J., at the Fall Term, 1859, of Polk Superior Court.

The land in question was a 200 acre tract, granted in 1802 to one Franks. David Hipp, the lessor of the plaintiff, having cleared a few acres on the eastern part of the tract, remained in possession at that place for a short time. He then made a larger clearing on the northern part of the tract, and having settled there, has continued in possession of it ever since, claiming the whole tract as-his own, which has been for about twenty-five years, but without any deed or other paper evidence of title. The clearing on the eastern part of the land remained unoccupied until about fifteen years before this suit was commenced, when it was taken into possession by a son-in-law of David Hipp. He sold his interest in this part to John Hipp, a son of David, who sold to the defendant, who entered and remained in possession down to the time of the bringing of this suit — in all, fifteen years. Neither the son-in-law, nor John Hipp, nor the defendant, during these fifteen years, had any written evidence of title for the part thus occupied by them. There was conflicting evidence as to the character of their tenure ; some of the witnesses testifying that the first holder entered as the tenant of David, and that they all three held in that capacity, while others stated that he entered and held in his own right, adversely to David’s title, and that his successors held in the same way.

The Court charged the jury, that if David Hipp, the lessor *600of the plaintiff, had been in possession of the land for twenty years, claiming title to it, he would have title to all of which he had actual possession, and that if the defendant, and those under whom he claims went in under him, their possession would be his, and he would be entitled to recover ; but if the son-in-law of David Hipp took possession for himself, and held adversely to David, and those claiming under him held also adversely, he could not recover.

The plaintiff’s counsel requested the Court to charge the jury:

If David Hipp had been in possession of the land described in the declaration, or any part of it, for twenty years; claiming the whole, that a deed was presumed from the grantee for all the land embraced in the grant to Franks, and as the defendant had made no disclaimer, the plaintiff was entitled to recover any how. The Court declined giving this instruction, and plaintiff excepted.

Under the instruction given, the jury found in favor of the defendant, and from a judgment according to the verdict, plaintiff appealed.

Eclney, for the plaintiff.

Diclcson, for the defendant.

Battle, J.

The bill of exceptions does not disclose any error of which the lessor of the plaintiff has any just cause of complaint. His Honor instructed the jury, that if those under whom the defendant claimed the land, of which he was in possession, entered as the tenants of the plaintiff’s lessor, then the lessor was entitled to recover; but if they intered upon it, claiming it for themselves, the action must fail. The case states that eaeh party gave testimony upon this question of the character of the defendant’s possession, and the jury found that those under whom the defendant claimed, did not enter as the tenants of the plaintiff’s lessor, but, on the contrary, entered upon the land, claiming it as their own. In that state of facts, the plaintiff’s lessor, having no deed or other paper evidence of title, could not show any right to recover the pos*601session from the defendant, because, as to him, and the part of the land which he occupied, he could not rely upon the presumption of a deed for the want of twenty ’ years possession, before the adverse possession of those under whom the defendant claimed commenced. This is manifest, from the statement that the plaintiff’s lessor was in possession of his clearing and improvements, on the northern part of the land contained in the grant to Franks, twenty-five years before the suit was brought, and that the defendant, and those under whom he claimed, were in possession of the cleared land on the eastern part of it, for fifteen years before the commencement of the suit.

It has been suggested, that as the declaration included the whole tract granted to Franks, and as the defendant did not disclaim for the part of which he was not in possession, the lessor was entitled, at least, to a verdict for that part. That proposition cannot be sustained ; because, as to such part he was already in possession, and could not, therefore, maintain ejectment against another person for it. According to a rule well established in this State, he could not recover without showing a better title than the defendant, to the land of which he had shown the defendant to be in possession. See Atwell v. McClure, 4 Jones’ Pep. 376, where the subject is fully discussed and explained.

Per Curiam,

Judgment affirmed.