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procedure to get possession of real estate. It is from the pen of an able jurist, and is as follows:

"The old English real action was so intricate that ejectment, an action by which a dispossessed tenant recovered his possession for the term of his lease against the ejector, was made to subserve its purpose. But the actual making of a lease, putting the lessee in possession by the lessor and the occupant ejecting him by retaining possession, proved to be too formal and troublesome. During the Protectorate, Lord Chief Justice Rolle, by fictions of law, obviated these difficulties. It was assumed that the claimant of the land in dispute had made a lease of the premises to a fictitious lessor, generally named John Doe-the term being for such a number of years as not to expire during the litigation-and put the lessor, John Doe in possession, when another fictitious personage named commonly Richard Roe and called the casual ejector, entered upon the premises and ousted John Doe from the possession, to recover which, for such term, from Richard Roe, John Doe, on the demise of the claimant, brought the action. The lands were not specifically described as required by our code. A stream of water could not be declared for, but was described as land covered by water. Notice of the action was served on the person found in possession of the land; and, if a tenant, he could notify his landlord and either could defend as tenant in possession. But as the plaintiff never proved the lease to John Doe, the entry and ouster by Richard Roe, the tenant in possession, to be let in to defend, was obliged to enter into the 'consent rule,' by which he admitted such fictitious lease, entry and ouster, which left for trial only the question, who was entitled to the possession. The legal title, as contradistinguished from the equity title, drew to itself the legal right to possession, and hence, the legal title, and the legal title only, could be tried in such action. The plaintiff, as now, had to recover upon the strength of his own title, not on the weakness of the title of the defendant. Outstanding legal

After recovery

title in a third person was a good defense. of possession by judgment in ejectment, the real or nominal plaintiff could sue the real defendant in trespass to recover mesne profits, and for waste, which were, by our statute of limitations, recoverable for four years prior to the bringing of the action." 1

Sec. 1112. Instances where ejectment a proper action.

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The possession of real estate may be obtained by one who recovers a judgment for breach of promise, and purchases the real estate of the judgment debtor, who, pending the proceedings, fraudulently conveyed the same for the purpose of defeating the collection of the judgment; by an heir who claims under a will probated before a partition of real estate, making the heirs, who had conveyed their interest to another, defendants; by a reversioner, where the life tenant forfeits the same for nonpayment of taxes; by a surviving husband, where it appears that a deceased wife at the time of her death, owned real estate in her own right and no state of facts existing, barring the husband's right of curtesy therein, and the land being in the possession of another;" by a grantor who has conveyed real estate to a grantee upon condition that a grist mill and saw mill shall be erected and maintained on the premises, the grantee failing to perform and remaining in possession; by a mortgagee against a mortgagor in possession, the mortgage having become due by condition broken; by a grantee from a grantor, the deed having been delivered and the grantor is in possession, refusing to admit the grantee into possession;" by a vendor from a vendee in possession before conveyance, the vendee being clearly in default; by a lawful

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12 Yaple's Code Prac. & Precedents, 749.

2 McVeigh v. Ritenour, 40 O. S. 107.

3 Woodbridge v. Banning, 14 O. S. 328.

4 McMillan v. Robbing, 5 Ohio,

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Hall v. Hall, 32 O. S. 184.
Sperry v. Pond, 5 Ohio, 388.

7 Bradfield v. Hale, 67 O. S. 317. 8 Jones v. Timmons, 21 O. S. 896. • Coggshall v. Marine Bank, 63 O. S. 88.

trustee against persons in possession claiming to be trustees; 10 by a mortgagee upon a mortgage, the real consideration for which being an agreement not to prosecute the son of the defendant for theft; " by a landlord to recover possession of leased premises, upon a forfeiture of the lease for nonpayment of rent; 12 and by the owner of land against one in possession under defective tax title.13

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The action cannot be maintained by the owner of land, who, by his consent, agreed to give a railroad company a perpetual right of way through the same, for the sum paid. to him, with a provision in the contract that the company should fence the same, and having failed to construct it; by a wife against a third person, claiming adverse possession, the husband having a freehold in the lands, with present right of exclusive enjoyment, and which has been lost by adverse possession, the wife's reversion being postponed until the termination of coverture; 15 and by a mortgagee, who claims under a past due and defectively executed mortgage, the certificate of acknowledgment not showing by whom the instrument was acknowledged.16

A person who holds possession of real estate, under a claim of ownership, is entitled to recover the same as against one who has no right or title to the same.17

It has been held that a person holding the duplicate final receipt of the receiver of the United States Land Office for

10 Harper v. Crawford, 13 Ohio, 13.

11 Doe v. Roll, 7 Ohio, 71; Williams v. Englebright, 73 0. S. 383. 12 Adams v. Parnell, 11 C. C. 567.

13 Wallace v. Dayton, Dayton, 416. 14 Hornbeck v. Cincinnati, 20 O. S. 81.

15 Thompson v. Green, 4 O. S. 217.

16 Smith v. Hunt, 13 Ohio, 260. 17 Hentig v. Pipher, 58 Kan. 788, 51 Pac. 229. L died, leaving land

to his heirs, subject to a lease to R, who, after remaining in possession for over eleven years, abandoned it to the heirs. Afterwards R executed a warranty deed to P, who recorded the deed, and remained in possession for over a year, when she abandoned the premises, and the heirs took peaceable possession. Held, that P could not recover possession of the land from the heirs and their tenant. Pankau v. Larzelere, 52 Pac. (Kan. App.) 906.

land taken under the provisions of the homestead laws of the United States, can maintain an action in the nature of ejectment for the possession of the land described in such final receipt.18

The interest given by statute to a wife in the real estate of her deceased husband is not an inheritance, and she may maintain ejectment therefor against one in possession whose title thereto was acquired by a fraudulent conspiracy entered into with the husband during his lifetime to defraud the wife of such interest, notwithstanding the heirs of the husband could not recover the real estate. It was further held in the case from which the foregoing proposition was taken that where a husband and his son have entered into a conspiracy to defraud the wife of her interest in the real estate of her husband in Kansas, and in furtherance of such conspiracy the husband executes a promissory note without consideration to a fictitious person, upon which they cause a judgment to be rendered, the land sold thereunder, and the title thereto passed to the son, the wife may maintain ejectment to recover her interest in such land against the son at any time within the statutory period of limitations after the death of her husband.19

Again, where a purchaser moves upon the land purchased, places a dwelling house thereon, makes other permanent improvements, and continues to live thereon, one who furnished the purchase money and holds a deed, absolute in form given to secure the same, cannot maintain ejectment against the purchaser. 20

A deed which conveys a portion of a quarter section of land by exact metes and bounds, and then contains the proviso: "Provided, however, that a strip of land sixty feet wide on the east and a strip of land eighty feet wide on the south, and a strip of land one hundred feet wide on the

18 McClung v. Penny, 12 Okl. 303, 70 Pac. 404.

19 McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663.

20 Abrams v. Abrams, 74 Kan. 888, 88 Pac. 70.

west of said tract of land is hereby reserved for street purposes when said quarter section of land shall be platted," creates a reservation in said strips, and the fee passes by the deed to the grantee. A recorded plat of lands within the city showing lots, blocks, streets and alleys, when filed by the owner of the land embraced in the plat, constitutes such dedication to public uses of the streets shown on such plat as will prevent the holder of the fee from maintaining an action for possession against an adverse claimant to a portion of the street.21

Sec. 1113. Plaintiff may recover where shown to be entitled to only a part of the land in controversy.

Where one brings an action to recover a body of land, and the facts show that he is entitled to recover a portion, but not all for which he sued, he may recover that portion which the pleadings and facts show him entitled, as the law does not favor a number of suits to accomplish a purpose when the courts may determine the rights involved without prejudice.22

Sec. 1114. Ejectment for breach of condition in deed.

A deed of general warranty in the usual form, conveying lands for the expressed consideration of the sum of one dollar and other good and valuable considerations, and a written contract executed at the same time, by which the grantee, in consideration of the deed, agrees to do certain acts, and provides that, in case of failure to perform such contract, the deed shall become void, and the lands conveyed revert to the grantor, both instruments being acknowledged and recorded at the same time, are to be treated as one, and construed together.

In a case where the facts were as just stated, the question arose whether the plaintiff might maintain ejectment to re

21 Edwards v. Brusha, 18 Okl. 234, 90 Pac. 727.

22 Edwards v. Brusha, 18 Okl. 234, 90 Pac. 727.

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