Hylton v. Brown

12 F. Cas. 1122, 1 Wash. C. C. 204

Opinion

WASHINGTON, Circuit Justice.

During the vacation, I have considered this question; and I am now satisfied, that the court was wrong, in ordering the nonsuit. I permitted my judgment to be influenced, more than it ought to have been, by the nisi prius opinion of the chief justice of this state, as reported by Mr. Dallas. I think, that in an ejectment, the plaintiff must show, and it is enough for bis purpose, if he does show a right of entry; or, in other words, a right of possession. If he prove twenty years’ possession, or the seisin of his ancestor, and a descent east, it is in general sufficient, prima facie, unless the defendant show a better right. But, the defendant may succeed, by showing a better right in himself; or,- by showing it out of the plaintiff. But, is it sufficient for the defendant to show an original title in the proprietary? If the plaintiff show a right of possession in himself; this, I think, is certainly sufficient against every person, but the proprietary. If the defendant rely upon the original title of the proprietary, he must show it to be a subsisting title, either in the proprietary, or-in some one claiming regularly under him. I admit the rule, as laid down in the case cited, to be correct, if the suit be against the proprietary’, or one claiming under him; but not otherwise. Nonsuit set aside.

[See Cases Nos. 6,981 and 6,982.]