#### Ryerss, Baxter and others *vs.*Wheeler.

A recovery in an action of ejectment and an entry into possession under it is a bar to a subsequent action by a party who relics merely upon a *prior possession;*but such recovery, *seems,*cannot be set up where the plaintiff in the second action was the *landlord*of the defendants in the first action, and had not *notice of the suit*so as to give him an opportunity to defend.

To enable a party to avail himself of such *former recovery,*he must distinctly place his defence upon that ground *at the trial,*so that the plaintiff may resort to his *documentary title,*if he has any; if the defendant does not do so, he will not be allowed to assume that ground on a motion for a new trial.

This was an action of ejectment, tried at the Yates circuity in June, 1840, before the Hon. Daniel Moseley, one of the circuit judges.

The suit was brought for the recovery of 109 acres of land. It was proved that *John B. Ryerss*was in possession of the premises by his tenants for several years previous to 1831, when he conveyed the same to one *Esek*Wilber, who, in the same year conveyed to Baxter, one of the plaintiffs in this cause. The defendant, *George 0.*Wheeler, and one John 0. Wheeler, occupied the premises as the tenants of Baxter for two or three years previous to July, 1837, when they were dispossessed by the sheriff of the county of Yates by virtue of a writ of *habere facias possessionem*issued on a judgment obtained against them in favor of Herman H. Bogert, in an action of ejectment, wherein issue was joined, a trial had, and a [ *438 ] verdict found in favor of Bogert, and that he had *an estate in fee in the premises. The tenants of Baxter attorned to Bogert, by taking a lease under him, dated 12th July, 1837, and expiring on the first day of April, 1838. At the expiration of the lease the defendant, George 0. Wheeler, alone remained in possession, and this action was commenced against him. Evidence was given by the defendant for the purpose *335of showing that the lease from Bogert to him and John 0. Wheeler was taken with the knowledge and approbation of Baxter. The counsel for the defendant desired the judge to charge the jury that the recovery of the premises by Bogert, and the subsequent attornment to him by the defendants was a bar to a recovery in this suit, and that the remedy of the plaintiff, if any, was confined to an application to the court, under the statute for a new trial. The judge charged the jury that the recovery by Bogert did not estop the plaintiffs from maintaining this suit, unless the attornment was with the knowledge and consent of Baxter; which question he submitted to the consideration of the jury. The defendant excepted to the charge, and the jury found a verdict for the plaintiffs ; which the defendant moved to set aside.

*A.*Worden, for the defendant,

insisted that as the plaintiffs had made out only a *possessory title,*the recovery of the premises by Bogert and the entry under it, overcame the plaintiff’s title, and entitled the defendant to a verdict; and the judge should so have charged the jury. He further insisted that the verdict in favor of Bogert was *conclusive*upon the plaintiff Baxter, so as to bar him from maintaining a suit for the recovery of the premises; that his only remedy was an application under the statute for a new trial.

*H.*Welles, contra.

*By the Court,*

Nelson, C. J.

Had the defence been put at the circuit on the ground now taken, namely, that the entry and possession by force of the recovery in ejectment afforded higher evidence of the title than the prior possession of the plaintiffs, there might have been some dificulty in sustaining *the verdict. 16 *Johns. R.*314. 7 *Cowen,*[ *439 ] 642. 15 *Wendell,*172. I am not,' however, prepared to say that the doctrine is applicable to the facts as disclosed here. For aught that appears, Baxter, the landlord, had no knowledge of the suits against his tenants, (the Wheelers,) nor any opportunity to defend. Under such circumstances I cannot say the recovery is to have the effect of destroying the presumption of title arising from his prior possession. It is very easy to see that great injustice might be done, if by the default or collusion of his tenants he should be driven to put himself upon the legal title. In *Jackson*v. *Rightmere,*16 *Johns. Rep.*314, the leading case on the subject, the landlord had notice, and defended. It is unnecessary, however, to express a definitive opinion upon that point.

The ground taken at the circuit to resist a recovery was, that the judgment in ejectment, and the attornment of the tenants with the privity of Baxter, *336concluded the latter; that his remedy was a new trial under the statute. To this the exceptions specially taken to the charge point. We have already held in *Ryerss and others*v. *Rippey and another, (ante, p.*432,) that this defence is untenable. Had the defendant at the circuit taken the ground now urged the plaintiff might have fallen back upon his paper title. We know, from other cases before us this term, involving the title to other portions of the lot, of which these premises are a part, that it was in his power to do so. Even a prior possession might have been shewn, possibly, which, within *Jackson*v. *Diefendorf,*3 *Johns. R.*269, would have prevailed over the presumption of title by force of the entry under the recovery in ejectment.

New trial denied.