Den on the demise of the heirs of Mordecai v. Oliver , 10 N.C. 479 ( 1825 )

Hall, Judge.

In the case of Alberton v. Redding’s heirs, (1 Law Repos. 274.) the Court decided, that in the action of ejectment, it was incumbent on the plaintiff to prove the defendant in actual possession of the lands sued for, because it was presumable that the defendant was not so well acquainted with the boundaries of the land set forth in the plaintiff’s declaration, as the plaintiff was with the defendant’s actual possession. I approve of that decision; but the present case is different from it. In this case, the Judge told the jury that if defendant claimed to be in possession, or claimed the lands in controversy, and entered himself a defendant with a view of maintaining such claim, that was sufficient to maintain the plaintiff’s action; by which I understand the Judge to say, that if the defendant admitted himself to be in possession of the lands sued for (not by entering into the common rule) by proof made for that purpose, quoad hoc, the action was maintainable. Of this opinion was the rest of the court, fend .

The judgment was aeeirmed.