before that time. But it is always a good defense in an action for royalty against an assignee, in respect to his privity of estate, for him to show an assignment of the estate before the royalty became due from him, and the lessor could not defeat this defense by proving that the assignment to such assignee was made without the consent or knowledge of the lessor, although the original lessee may have violated a covenant in making such assignment, for the reason that the lessor's proper remedy would have been an action against the original lessee on his covenant not to assign.2

1 Ante, idem.

2 And see as to an equitable assignment and lessor's right of action against equitable assignee, Cox v. Bishop, 8 De G., M. & G. 815; Walters v. Northern C. M. Co., 5 Id. 629; Preston v. McCall, 7 Gratt. (Va.) 121. And see as to prior agreement of assignor, Turner v. Reynolds, 23 Pa. St. 199. But see Crossfield v. Morrison, 7 C. B. 286; Fisher v. Milliken, 8 Pa. St. 111.

CHAPTER VI.

ACTION OF EJECTMENT.

SECTION 525. When maintained at common law. 526. The action under the code.

527. Complaint - Description of premises.

528. Defendant must be in possession.

529. Proof of title.

530. Action may be maintained on prior possession.

531. Licensee cannot maintain.

532. When lessee can deny lessor's title.

533. Successful plaintiff entitled to profits.

534. Same-Mesne lessee not liable therefor - Defenses.

535. Action lies for minerals.

536. Same As regards fixtures.

537. Equitable defenses.

§ 525. When maintained at common law. The action of ejectment would lie at common law, when one was in exclusive possession of the land, and the present right to the exclusive possession was in another.1 The action will lie for anything demisable, but the property must be of a tangible nature, and the action will not lie for a mere incorporeal hereditament, which would only pass by grant.2 The lessor, at common law, could not enter and maintain the action against his lessee during the continuance of the latter's term, but this disability is avoided by the insertion of a forfeiture clause, giving the lessor a right of entry, upon a breach of the conditions of the lease, and where such a

1 Plaintiff must allege and prove possession by defendant. Clarkson v. Stanchfield et al., 57 Mo. 573. But constructive possession in defendant is sufficient. Moore v. Moore (Cal.), 34 Pac. Rep. 90.

2 Sands v. Kagey, 150 Ill. 109; Louisville &c. Co. v. Berkey (Ind.), 36 N. E. Rep. 642; Union Pet. Co. v. Bliven Pet. Co., 72 Pa. St. 173. But see Karnes v. Tanner, 66 Pa. St. 297.

breach occurs, the action can be maintained, although the term has not yet been determined. At common law a technical demand and distress was necessary and an actual entry on the premises by the claimant, before he could maintain the action. But by the statute, 4 Geo. II., c. 28, which has been generally adopted in the United States, the technical common-law demand was dispensed with, and although the right to make an entry is still a necessary prerequisite to the action both in England and the United States,3 the necessity of making an actual entry before bringing the action has been abolished.*

§ 526. The action under the code - Under the code the plaintiff is authorized by statute to recover possession alone, or possession with damages, and the omission to ask

1 McGarrity v. Byington, 12 Cal. 426; King v. Edwards, 1 Montana, 235; s. c. B. & W. L. C., p. 223. But in an ejectment suit against a lessor who has entered for breach of a condition, the burden of proving the forfeiture is on the lessor, although defendant in the suit. McKnight v. Kreutz, 51 Pa. St. 232; s. c. Mor. Min. Dig., p. 87. Under the com. mon-law action of ejectment, the plea "not guilty" would enable defendant to show that plaintiff's lessor had parted with his title since the commencement of the action. Etowah Mining Co. v. Henderson (Ala. 1900), 29 So. Rep. 7.

2 Tiedeman on R. P., § 276 et sub.; Taylor's Land. & Ten. (7 Ed.), § 698, and cases cited.

3 Plaintiff must have the right to the immediate possession at the time of the suit. Herbert v. King, 1 Mont. 475.

4 Van Rensseler v. Ball, 19 N. Y. 100; Taylor's Land. & Ten., §§ 301302-494 (7 Ed.); Tiedeman on R. P., § 277, p. 185; 2 Wash. R. P. 13; Fonda v. Sogl, 46 Barb. 123; Green v. Pettingill, 47 N. H. 375; Stearns v. Harris, 8 Allen, 598. "Ejectment lies for a coal mine or coal pit." Comyn Kyneto, Cro. Jac. 150; Jenkins, 313; s. c. Styled Comyn v. Wheatly, Nov. 121; M. M. D. 87. "Tin bounds, eo nomine, are not the subject of ejectment. They should be described as a mine lying within certain bounds called tin bounds." Doe v. Alderson, Tyrwh. & G. 543; s. c. 1 M. & W. 210; s. c. Dow. Pr. R. 701; M. M. D. 87. "Query, whether ejectment will lie for a quarry." Brown v. Chadwick, 7 Irish, C. L. 101; M. M. D. 87.

for damages indicates the election.1 Where possession alone is claimed and a money demand is not alleged and a certain amount asked for, it is error for the court to admit evidence in regard to damages, and a judgment for damages would be void. The general object of this code provision is briefly explained by Judge Bliss, in his excellent work on code pleading: "The object of the clause is not so much to authorize the recovery of damages in real actions, as the union, in one proceeding, of causes of action for the recovery of distinct parcels of land." In prosecuting this action, whether the wrong is a single one, furnishing but one cause of action, or whether there has been a dispossession of different parcels, at different times, having no connection with each other, thus making a separate cause of action in regard to each parcel, it is not disputed that as to each cause of action, the plaintiff may claim possession, with the damage and rents spoken of, or may claim the possession alone, and prosecute the money demand by an independent action."

1 See Statutes different States.

2 Bliss on Code Pleading, § 132, p. 220; Livingston v. Tanner, 12 Borh. 481.

3 Bliss on Code Pleading, supra. That plaintiff owns the fee, is a good allegation of title; it is not essential to set out the source of title. Baker v. Carrington, 68 N. Y. S. 405.

4 Bliss C. P., § 132, pp. 220-1; Vandevort v. Gould, 36 N. Y. 639. "Equitable relief in regard to the land in suit is sometimes and properly sought, more often to prevent injuries in the nature of waste. This is not, however, a joinder under the clause of the statute, but is either the ancillary relief which the courts sometimes give, or if the injury be a separate cause of action, it is one connected with the subject of the action, i. e., the land itself." See authorities, supra. Under general plea, outstanding title may be shown although not connected with defendant. Cowan v. Hatcher (Tenn.), 59 S. W. Rep. 689. But mere trespasser cannot set it up. Casey v. Kimmel, 181 Ill. 154; 54 N. E. 905. An outstanding title must be one capable of enforcement by the owner. Wilson v. Braden (V. Va. 1900), 36 S. E. 367.

§ 527. Complaint-Description of premises. In the action of ejectment the complaint must truly describe the premises claimed,1 but the nature of the estate and the quantity of the plaintiff's interest are not matters necessary to be set forth in the complaint. He has been

allowed to recover an undivided interest in an estate when he alleged to be the owner of the whole, and a mistake in the description of the premises, when the same is not material to the location of the land, will not prevent a recovery of the tract. Generally, any description of the premises, which would enable the sheriff to definitely locate the same, would be sufficiently specific,5 and in England and some of the United States, the sheriff is permitted to act under the instructions of the plaintiff, although the land is not described sufficiently definite to enable him to locate the same, without further directions, the claimant, of course, being responsible for any misdescription. When the land is described by courses and distances with but one monument mentioned in the description, the plaintiff is confined to the bearing of the magnetic needle at the time when the action was brought and the lines must always be confined to the courses and distances and cannot be extended

1 Taylor's Land. & Ten., § 704, p. 592.

2 Ante, idem. Harrison v. Stevens, 12 Wend 170.

3 Harrison v. Stevens, supra.

4 Clark v. Clark, 7 Vt. 190, where it was held a description sufficiently definite to enable the sheriff to find the property, and properly locate same, was good.

5 Idem; also Brooks v. Tyler, 2 Vt. 348. The strict description of premises required at common law is now relaxed and a description, in ejectment, of a tunnel or lode claim, by name, if it could be identified, is sufficient. Glazier Mt. Silver Mining Co. v. Willis, 127 U. S. 471; 32 L. C. P. Co. Ed. 172. A description sufficently definite to enable the sheriff to locate the property, is good. Bay State Mining Co. v. Jackson, (Colo. 1900), 60 Pac. Rep. 573.

6 Taylor's Land & Ten., § 704, p. 593.