Harrington v. Gabby

Warner, Chief Justice.

This was an action brought by the plaintiff to recover the possession of a lot of land from the defendant under the statutory form. On the trial of the case the plaintiff offered in evidence the plat and grant from the state to Elizabeth Pearcy, and a deed from Boyd, administrator de bonis non of Wit-tick, to Irby, and a deed from Irby to Harrington, the plaintiff. There was no deed from Elizabeth Pekrcy, the drawer, conveying the title to the lot from her. Upon this evidence the court, on motion of the defendant, non-suited the plaintiff, to which ruling of the court the plaintiff excepted. The argument for the plaintiff is that under the statutory form of action, as provided by the Code, the plaintiff is entitled to recover when he exhibits an abstract of his title and shows that the land has been granted by the state, in the same manner as if he had alleged a demise from the grantee in the common law action of ejectment. The reply is that when he seeks to recover the possession of land under the statutory form, the plaintiff must show a title to the land which he seeks to recover by an abstract thereof annexed to his declaration. The statute does'not contemplate, when it dispenses with the common law form of the action of ejectment, that the plaintiff shall not establish his legal right to recover the land. In this case the plaintiff did not show any title to the land sued for, in himself, or in those under whom he claims, but, on the contrary, his own evidence shows that the legal title to the lot of land is in Elizabeth Pearcy, the drawer, inasmuch as no title was shown to have been conveyed by her to any person. In our judgment, the non-suit was properly awarded by the court on the evidence before it.

Let the judgment of the court below be affirmed.