#### DEN ON THE DEMISE OF ADDERTON & AL. *vs.*MATTHIAS MELCHOR.

In an action of ejectment, where the declaration contained several counts; some of which were on the demises of persons, who had died before the action was brought; *Held,*that the Court below did right in ordering these counts to be stricken from the declaration.

Appeal from the Superior Court of Law of Stanly County, at the Spring Term IS49, his Honor Judge Caldwell presiding.

The declaration in this action of ejectment had many counts. Among others, there were counts on the several demises of John and Thomas Carson, and William Moore, laid in the year 1796. At the return term, Spring of 1848, the defendant, upon affidavit, that the said John, Thomas, and William, were dead, and had died as far' back as the year 1810, obtained a rule to show cause, why the counts, upon their demises, should not be struck out of the declaration. The plaintiff alleged, that the other lessors claimed under the said John, Thomas, and William. Upon argument, the rule was made absolute, and the plaintiff appealed. ?

*350
      *Strange,*for the plaintiffs.

No counsel for the defendant.

Pearson, J.

There was no error in making the rule absolute. Indeed, the counsel for the real parties admits, that the idea of laying a demise in the name of one, who had died many years before the institution of the suit, was an “experiment.” The experiment ought not to have succeeded. It was obviously an attempt to pervert a fiction of law from its true purpose and intent. The proper time for making the motion was at the appearance term, but the Court should, at any *time, (at least*before verdict,) have allowed the application, and should have permitted, the plea and consent rule to be withdrawn, if necessary, to enable the defendant to make the motion.

, The action of ejectment is admirably adapted to try questions of title to land, and the fiction of “lease, entry, and ouster” is a beautiful illustration of the fact, that a fiction of law “works wrong to no one,” and is never introduced into legal proceedings, except for the purpose of avoiding useless delay and expense, and furthering the ends of justice. It is true “John Doe'and Richard Roe” are very much abused by persons, who are not well ac-' quainted with them, but they are deservedly favorites with those, who have cultivated their acquaintance. No one, who comprehends the full scope and object of the fiction, can fail to be struck with it, as an enduring monument of the wisdom and clear sightedness of the fathers of our law.

After it became common for freeholders, instead of bringing *real actions, to*enter upon the land and make leases for years; so that the lessees might bring ejectment, it occurred to the Courts, that the fact of making the “entry and lease” was unnecessary, and was attended with useless expense and delay. How was this to be *351avoided ? If the lease and entry were supposed, and the action was brought against the tenant in possession, he had a right to enter his plea, and could not be called on to make any admissions. The expedient adopted was, to bring the action against the *casual*ejector; let him give notice to the tenant in possession ; who, when he applied to be made defendant, might be required to admit “lease, entry, and ouster,” as a condition of his being allowed to defend. He had no right to complain — he was not required to admit any thing, that would prejudice his right, but, simply, to admit those things to have been done, which the lessor might easily have done, by increasing the trouble and expense. But to require him to admit a thing, which could not have been done, at the institution of the action — for instance that a lease had been made by a *dead*man — would be unreasonable. The proposition would have shocked Chief Justice Rolle, who, nearly two centuries ago, had the honor of inventing the action of ejectment in its present form. *Blachstone's Com.*8 *vol.*199,'207.

Besides being unreasonable, as requiring the admission of an impossibility, it would be a palpable violation of a fundamental principle of the action of ejectment. “The lessor must not only have title, at the date of the demise, but must have title and a right of entry at the commencement of the suit.” At the death of the proposed lessors, the title passed out of them to their heirs or some one else. When this action was instituted, the dead lessors had neither title nor right of entry.

The decision of the Court below must be affirmed.

Rufpin, C. J.

Besides the reasons given by my brother Peaeson for affirming the judgment, there are others, which render it plain, that the counts in question ought not to be suffered to remain in the declaration.

*352There is no instance, in which a count on the demise of a person, who was dead at the time of bringing suit, has bee» sustained; and it is contrary to reason, that it should be.

If there were a verdict for the plaintiff on those counts, who could be put into possession under it ? Very clearly, the lessors of the plaintiff in the other counts could not; for, the titles of the several lessors in the different counts are distinct and independent, and hence the necessity of laying the various demises in different counts. It is true, indeed, if a lessor of the plaintiff die pending the action, that does not affect the/ proceeding, but the case goes on to trial on the demise to the plaintiff, which the lessor, since dead, was capable of making as it is laid, and when the suit was brought. In such a case, therefore, there can be no difficulty in permitting the lessor’s heirs or devisees, on a title thus *accruing pendente lite,*to proceed in the name of the plaintiff of record to execution. But that can never authorise a person to bring a suit on the supposed demise of a person, who was dead at the time, instead of doing so on his own. If the person, actually instituting the action, have a connection with the dead person, he must have derived his title or claim from him before the suit was brought; and therefore there is no occasion for using the dead man’s name, instead of his own, or in addition to it. If, on the other hand, he cannot deduce title from the dead person, upon what possible ground can he assume to use his name to disturb the party in possession, who has the right *to*continue in possession against all but the real owner ? It is obvious, indeed, if the other lessors of the plaintiff coúld-recover and take possession under the imaginary demises of the dead persons, that the present defendant would then have just the same right to bring suit immediately against those other parties, on the demises of the same dead persons, and, thus, in turn evict them. The ah-*353surdity of sucb a seesaw shows the impossibility of allowing such an abuse of the legal fictions in ejectment, as was here attempted.

Per Curiam. Ordered to be certified accordingly, '