very nature equitable, and not in issue in a suit for the possession.1 § 535. Action lies for minerals. It was held in the early English cases that an action for the recovery of the possession of mines and minerals, as a part of the solum of the earth, could properly be maintained by the party entitled to the possession and this doctrine has been affirmed by a long line of more recent decisions. The right is based upon the separate ownership of the minerals, which constitute a part of the land, before their severance from the soil, and a distinct right to their possession may exist apart from the surface, since real estate, from its very nature, is susceptible of such dual ownership.* Where the mines and surface are owned by the same person they of course go as a part of the entire solum of the earth, and the question becomes of more importance when a separate ownership exists. The remedy extends for the recovery of open mines, as a distinct subject-matter of the action, regardless of the ownership of the surface." But whether the action lies for mines not yet opened or undiscovered lodes was formerly a mooted question. It 1 See Statutes different States. (R. S. Mo. 1899, Sec. 2259); Koch v. Hawkins, 40 Mo. App. 680, and cases cited. 2 Harebottle v. Peacock, Cro., Jac. 21; Crocker v. Fothergill, 2 B. & Al. 660; Corwin v. Kyneto, Cro. Jac. 150; Rich v. Johnson, 2 Str. 1142; Port v. Turton, 2 Wils. 172; Rose v. Nixon, 2 J. & W. 555; MacSwinney, pp. 523, 524; Mor. Min. Dig., p. 87. 3 Beatty v. Gregory, 9 Mor. Min. Rep. 234; 17 Iowa, 109; Boone v. Stover, 66 Mo. 434; Mor. Min. Dig., supra; MacSwinney on Mines, p. 523. 4 Tiedeman on Real Property, § 210. 5 Sayer v. Pierce, 1 Ves., Sec. 232; Bowser v. Colby, 1 Ha. 114; Dartmouth v. Spittle, 79 W. R. 445. But see Brown v. Chadwick, 7 Ir. C. L. Rep. 108. 6 MacSwinney on Mines, p. 523. has been held, principally on account of the impossibility of enforcing the judgment of the court, that the action. would not lie for the possession of unopened mines,1 but where there is an instrument creating a corporeal right to the possession of unopened mines, since such a right is always susceptible of enforcement, the action can be maintained for the possession of the undiscovered ore.2 Same § 536. As regards fixtures. Ejectment is applicable to the recovery of machinery and fixtures annexed permanently to the realty, as an incident to the recovery of the land itself; 3 but the action does not lie for the recovery of mere personal chattels. Where the machinery is annexed to the realty and the ownership is the same, a recovery in ejectment carries with it the title to the machinery, and where the plaintiff establishes his title to the realty and ownership of machinery erected thereon, an action can be maintained, on proof of his exclusion from the use and possession of the machinery. But the plain 5 1 Sayer v. Peirce, supra; also Wilkinson v. Proud, 11 M. & W. 33; Cole on Eject. 91. In ejectment, to recover a mine in possession of a purchaser, who has defaulted, injunction will issue in aider of the ejectment, to prevent removal of mineral. Williams v. Long, 129 Cal. 229; 61 Pac. Rep. 1087. 2 Low Moor Co. v. Stanley Coal Co., 34 L. T. (N. s.) 186; MacSwinney on Mines, p. 524. It has also been held that the action would lie for the possession of an oil lease, even though the right created was but an incorporeal hereditament. Karns et al. v. Tower, 65 Pa. St. 297; s. c. 5 Mor. Min. Rep. 289. It is a matter of some doubt, as drolly remarked by an early writer, how the sheriff would proceed to put a party in possession of such a right. Cole on Eject. 91. 3 Ewell on Fixtures, p. 441. 4 Ante, idem. "A 5 Adams Eject. 347; Ewell, supra; Altes v. Hinckler, 36 Ill. 275. 6 Hill v. Hill, 43 Pa. St. 521; Paul v. Eldred, 29 Pa. St. 415. steam engine and boilers fixed in an anthracite furnace for the manufacture of iron are part of the realty." Roberts v. Dauphin Bank, 19 Pa. St. 71; M. M. D. 105. tiff must be entitled to the possession of the realty, if the machinery is in the nature of a fixture, before he will also be permitted to recover the machinery, and a recovery of the mineral beneath the surface would not carry with it the machinery erected on the surface, unless the plaintiff was entitled to and did recover the possession of the surface on which the machinery was erected.1 § 537. Equitable defenses. The plaintiff cannot recover in the action of ejectment, even though he may succeed in showing that the defendant has no legal right to the possession of the premises in controversy, providing the latter can show that he would have, in equity, the right to the immediate possession of the premises. If the defendant holds an equitable lien on the land, he is entitled to the possession of the same, provided he is in possession, until his lien has been satisfied, and the plaintiff in such case could not recover until he paid to defendant the amount of his lien upon the land. A purchaser at an administrator's sale, acquires an equitable interest in the land, as soon as he pays the purchase money, and this will constitute a sufficient defense, in an action by the grantee of the heirs of the deceased, when such party has either actual or constructive notice of the facts.5 And where the plaintiff is trustee of the land in controversy and holds the 1 Bullion Min. Co. v. Croessus Gold & Silver Min, Co., 2 Nev. 169; Mor. Min. Dig., p. 87. 2 Baker v. Wall, 59 Mo. 265. But see, contra, where a trust is given a stranger to protect a wife from her husband, ante, idem. And the laches of plaintiff may also constitute an equitable defense. v. Shellenbarger, 21 Neb. 507. Dentertre 3 Schuster v. Schuster, 93 Mo. 438; Hayden v. Stewart, 27 Mo. 286. And possession under a contract of purchase is a good defense. Tibeau v. Tibeau, 19 Mo. 78; Harris v. Winyard, 42 Mo. 568. 4 Lang v. Joplin Mining & Smelting Co., 68 Mo. 422; Jones v. Manly, 58 Mo. 559. legal title for the defendant, the latter can set up this fact as an equitable defense and ask that the title be vested in him. But the interposition of an equitable defense does not, in any particular, change the nature of the action, and the issues are the same as before.2 1 Shroyer v. Nickell, 55 Mo. 264 (following Valle v. Fleming, 29 Mo. 152). 2 Schuster v. Schuster, supra; St. L. v. Bockler &c. Co., 98 Mo. 613; 8 M. A. 577 (appendix). And where the complaint is in ejectment and asks also for an injunction, defendant can interpose his equities. South End Min. Co. v. Tinney (Nev.), 35 Pac. Rep. 89. "A complaint in ejectment for a mining claim, which also prays for an injunction to restrain its working, should not be dismissed, because as to the injunction prayed for it does not set forth sufficient grounds to give the court jurisdiction to grant the injunction." McNeady v. Hyde, 47 Cal. 482; M. M. D. 90. "In ejectment for an interest in a mining claim, defendant cannot defeat the action by showing the claim to partnership propperty. Rights arising out of the partnership must be asserted in equity, and cannot defeat the recovery of the legal title." Lowe v. Alexander, 15 Cal. 297; M. M. D. 88. An equitable title cannot prevail as against a bona fide purchaser of the legal title. Sengfelder v. Hill, 21 Wash. 371; 58 Pac. Rep. 250. But see Pope v. Nichols, 61 Kan. 230; 59 Pac. Rep. 257; and contra, Carter v. Ruddy, 166 U. S. 493; 41 L. Ed. 1090. CHAPTER VII. FORCIBLE ENTRY AND DETAINER. SECTION 538. History and nature of action. 539. Forcible entry distinguished from unlawful detainer. 544. Same Miner, operating under "register," cannot maintain action. In treating § 538. History and nature of the action. of the action of forcible entry and detainer, although the statutes of many of the States make a distinction between this and the summary process for the recovery of land, the general nature and effect of the two actions is similar and they will be here treated under one head. The action of forcible entry and detainer was originally a criminal proceeding, and an indictment will still lie at common law against one who obtains possession of land by force or violence and without authority of law,1 provided the entry is accompanied by a public breach of the peace, and on conviction the court will award restitution of the premises the same as a judge in a civil case. The legislatures of the different States, however, viewing the restitution of the property as of more importance than the conviction of the 1 Bouvier's Law Dict., p. 599; Sta. Henry VI., Ch. 9, was enacted in 1429; 3 Eng. Sta. at L. 121 is the beginning of civil remedy; 9 Enc. Pl. & Pr., p. 23. 2 Fuhr v. Dean, 26 Mo. 116. |