#### DEN ON DEMISE OF JOHN McDOWELL *vs.*JAMES R. LOVE.

Where, in ejectment against a tenant, a person comes in, and is admitted to defend, upon his affidavit “that the premises in dispute were his, that the tenant alleged to be in possession was his tenant, and that he was the landlord of the premises sued for;” it is not necessary for the plaintiff to prove that the defendant was in the actual possession of the premises, that being considered as admitted by the landlord, when he applied to be made a defendant.

The cases of *Albertson*v. *Redding,*2 Mur. 283, *Gorham*v‘. *Beeman,*2 Dev. • 174, *Carson*v. *Burnett,*1 Dev. & Bat. 560, and *Belfour*v. *Davis,*4 Dev. Bat. 310, cited and approved.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1848, his Honor Judge Battle presiding.

This was an action of ejectment, brought originally against one Joseph Chamberses tenant in possession, but in which the present defendant was afterwards permitted to come in and defend as landlord upon the following affidavit. “James R. Love comes into Court and swears that thé premises in dispute are his, he being the sole tenant of said premises ; that Joseph Chambers, went into possession as subtenant of his tenant, E. Chambers, that *503affiant swears that said subtenant has no title, and the same solely exists in this affiant, who is the landlord of the premises sued for.

The lessor of the plaintiff claimed under a grant from the State issued in 1810, which covered all the land mentioned in his declaration. The defendant claimed under a prior grant issued in 1805, which covered all the land contained within the boundaries of the lessor’s grant, except a very small slip, as to which, however, there was no evidence, besides the defendant’s affidavit, that he or his tenant was in possession at the commencement of the suit, or at any other time. The principal contest was, whether the plaintiff’s lessor had not acquired the better title, by an adverse possession of seven years, of the part covered by the defendant’s grant, of which it was not denied that his tenant was in possession when the suit was brought. But the lessor insisted that, however the jury might find as to that, he was entitled to a verdict for the small slip of land not covered by the defendant’s grant, upon the ground that by coming in to defend as landlord upon affidavit, the defendant had admitted himself to be in possession, and that no evidence of that fact was necessary on the trial. The Court held otherwise, and the jury found a verdict for the defendant. The lessor of the plaintiff moved for anew trial for misdirection in the particular above stated, which was overruled, and a judgment given, from which he appealed.

*N. W. Woodfin, J, W. Woodjin,*and *Bynum,*for the plaintiff.

Francis, for the defendant.

Battle, J.

Ever since the decision of the case of *Albertson*v. *Redding, 2*Murph. Rep. 283, S. C. 1 Ca. Law Rep. 274, it has been considered the settled law of this State, that, in all cases of ejectment, whether the consent rule be general or special, the lessor of the plaintiff is *504bound to prove the defendant to be in possession of the premises, which he seeks to recover. This is placed upon the ground that the defendant’s being in possession of the premises is a material allegation of the plaintiff’s lessor, which it is incumbent upon him to prove; and that the consent rule, by which the defendant is permitted to defend, upon confessing lease, entry and ouster, does not supersede the necessity for such proof. But the rule is different, where the defendant makes a distinct admission, before suit is brought, that he was in possession, as in the case of *Mordecai*v. *Oliver,*3 Hawks Rep, 479 ; or where one, upon his own motion, procures himself to be made a defendant, in an action brought against another as in *Gorham*v. *Brennon, 2*Dev. Rep. 174: so, in the case of *Carson*v. *Burnet*& *Mills,*1 Dev. and Bat. Rep. 560, it was said by the Court *arguendo,*that it might not be necessary to prove the tenant to be in possession of of any particular place as against the landlord, who admits him to be in possession, as his tenant, by engaging to defend him. The distinction between the necessity of proof of possession, as against the tenant and not as against his landlord, is founded upon this, that the tenant is brought involuntarily into Court by the plaintiff’s lessor, while the landloid comes forward of his own accord and admits the possession of his tenant. In the case before us, the defendant, Love, came into Court and swore that the “ premises in dispute,” were his ; that Joseph Chambers went into posession as subtenant of his tenant, E. Chambers, and that he was the landlord of the premises sued for. His own affidavit therefore supplied the proof of his tenant’s possession of *all*the land contained within the boundries descirbed in the plaintiff’s declaration. It is true that it is said, in *Belfour*v. *Davis,*4 Dev. and Bat. Rep. 300, that a landlord, who is admitted to defend with, or in the stead of his tenant, stands in his place, and is entitled to his rights and subject to his disadvantages ; but that is with respect *505to the title, and not to the proof of possession, which he admits by the very fact of coming forward to defend the suit. Whether, when the tenant is in possession of, and claiming as such, only a part of the land sued for, the landlord would be permitted to come in upon this affida. vit and defend only for such part, it is unnecessary for us to decide, as the question is not presented in the case now under consideration.

The judgment must be reversed and a *venire de novo*awarded.

Per Curiam. Ordered accordingly.