1822.

Ricard

V.

Williams.

rived his title, in the manner hereafter stated. No administration was ever taken in Connecticut upon the estate of William Dudley, until 1814, and his estate was then declared insolvent; and, in 1817, the lands in controversy were sold by the administrator, by order of the Court of Probates, for the payment of the debts found due under the commission of insolvency.

To rebut the title of the demandants, and to establish his own, the tenant proved that William Dudley died intestate, leaving seven children, the eldest of whom was Joseph Dudley. Upon the death of his father, the guardian of Joseph (the latter being within age,) entered into possession of the Dudley lands, and the demanded premises as parcel, and used and occupied the same, receiving the rents and profits in behalf of Joseph, until his arrival of age, when Joseph himself entered into possession, claiming them as his own, and taking the rents and profits to his own use, and holding all other persons out of possession, until the year 1811 and 1812, when he sold the demanded premises, and the tenant, either by direct or mesne conveyances under Joseph, came into possession, and has ever since held the premises in his own right. In the year 1811, Samuel Dudley, the brother of Joseph, claimed title to some of the Dudley lands possessed by Joseph, and brought an action of ejectment for the recovery of them, but the suit was compromised by Joseph's paying him about 2,000 dollars; and about the same time Joseph settled with another of his brothers, but did not pay him any thing. But Joseph never admitted that his brothers

or sister had any interest in the lands; and said he could hold them, and did hold them in the same manner as he held the lands in Massachusetts.

The will of Governor Dudley, which was admitted to probate in Massachusetts in 1720, was also in evidence, but neither party established any privity or derivation of title under it.

Upon these facts, the tenant prayed the Court to instruct the jury, that the demandants had not made out a title in themselves, nor in William Dudley. Not in themselves, because the sale by the administrator to the demandant was void, by force of the statute regarding the sale of disputed titles, the tenant being in possession of the property at the time of the sale, claiming it as his own, and that William Dudley had acquired no title to the property in question by possession, as he claimed to hold the same only during his life, and could therefore acquire no title, except for life by any length of possession, and that if he could acquire title by possession, if this estate descended from Thomas Dudley, said William could not, in seventeen years, acquire a title against his brothers and sisters, or at least against those of them who had not been of full age for five years before the death of said William; and if the demandants could recover at all, it could only be for that proportion of the estate which descended from William as one of the heirs of Thomas Dudley.

The tenant further prayed the Court to instruct the jury, that if they found that Joseph Dudley had, for more than fifteen years before he sold the land in controversy, been in possession of the same, exclusively

1822.

Ricard

V.

Williams.

1822.

Ricard

V.

Williams.

claiming them as his own, and holding out all others,
he had gained a complete title to the property.

The tenant further claimed that the Court ought
to have instructed the jury, that under the circumstan-
ces attending the posses..on of said lands by William
Dudley, the father, and by Joseph Dudley, and the
length of time which had elapsed since the death of
said William, without any claim on the part of the
creditors of said William, the jury might presume a
grant from some owner of the land to William for
life, with remainder to his eldest son. But the Court
did charge and instruct the jury that the sale by the
administrator under an order of Court was not with-
in the statute regarding disputed titles, and was not
therefore void. That William Dudley, by mistaken
constructions of the will of Governor Dudley, might
have claimed an estate for life in the premises, and
that such mistake would not operate to defeat his ti-
tle by possession. That the length of time in which
this estate had been occupied by William and Joseph
Dudley, would bar any claims by the other children
of Thomas Dudley deceased, and that the jury were
authorized to presume a grant by said children to
their brother William Dudley deceased, aud, there-
fore, if the demandants recovered, they must recover
the whole of the premises.

The Court also charged the jury that, as against the creditors of William Dudley, neither Joseph Dudley nor the tenant had gained title to the lands in controversy by possession, and that the jury were not authorized to presume a grant to Joseph.

To which several opinions of the Court, the tenant by his counsel excepted.

Mr. D. B. Ogden, for the plaintiff in error, argued, 1. That this being a writ of entry, in which the demandants or plaintiffs counted on their own seisin, and could count in no other way; and as they were unconnected with any other seisin than their own, it was necessary for them to have shown upon the trial an actual entry. Without such actual entry there never could have been any seisin or possession in them; and without such seisin or possession in them there never could have been any disseisin or forcing them out of possession. In an action of ejectment, which is a mere legal fiction, the execution of the lease, the entry under it, and the ouster are all stated in the declaration, and they must be proved upon the trial. Unless the defendant will afford the means of that proof by his confession, the plaintiffs cannot obtain a verdict. So here the entry and ouster must be proved, or the plaintiffs never can recover; because the entry and ouster are the very foundation of the whole action. Actual seisin is as

necessary in a writ of entry as a writ of right. The actual seisin and ouster are expressly stated in the declaration. They are material and necessary allegations. It is a universal rule, that whatever is a material and necessary allegation in the declaration, is a material and necessary part of the proof upon the trial, unless that necessity be dispensed with by

1822.

Ricard

V.

Williams.

Feb. 13th.

1822.

Ricard

V.

Williams.

the pleadings. Now, in this case, there is no pretence that any actual entry was ever made in the premises in question by the plaintiffs. None was proved upon the trial; the demandants were, thereupon, not entitled to a verdict.

By the local law of Massachusetts and Connecticut an administrator has no seisin of the lands of his intestate. They descend to his heir at law, subject to a naked power in the administrator, in case of an insufficiency of the personal property to pay the debts of his intestate, to sell the lands for the payment of those debts. The administrator or executor may lawfully sell them, whether they be in the possession of a devisee, or an heir, or their heirs or assigns, or of a disseisor of a devisee or heir: for, say the cases, the naked authority of an administrator to sell on license cannot be defeated by the seisin of a devisee, or heir, or by their alienation or disseisin." By the law of Connecticut, which, in this respect, is precisely similar to that of Massachusetts, the administrator may sell the lands of his intestate for the payment of debts, and his conveyance vests in the grantee, not the possession or seisin of the land, because that was never in the administrator; but a right to the property, and a right of entry into it; a right to the possession of it, but not the possession itself. Upon this right of possession, the grantee might at once bring an ejectment, in which he need prove no actual entry and ouster, but they must be

a Drinkwater v. Drinkwater, 4 Mass. Rep. 354. Willard v. Nelson, 5 Mass. Rep. 240. Hays v. Jackson, 6 Mass. Rep.