A Treatise On the Trial of Title to Land; Including Ejectment; Trespass to Try Title; Writs of Entry, And Statutory Remedies for the Recovery of Real Property; Embracing Legal And Equitable Titles And Defenses

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13 Am. Dec. 140, note. An ouster which may be the subject of an ejectment or an action of trespass will not necessarily sus- tain a suit instituted to invoke the equitable powers of the court to restrain it. Shoe- maker v. Shoemaker, II Abb. N. C. (N. Y.) 85.
196 EJECTMENT BETWEEN CO-TENANTS. [§ 279.
claimed any right to it except tbe plaintiff, who had never distinctly stated the nature of the claim put forward by him, and had not demanded to be let into possession of a specific interest as co
...-tenant. On this evidence the court below granted a non-suit, and this ruling was held on appeal to be correct. Mr. Freeman, in his valuable work on Co-tenancy and Partition, 1 says of this decision, that if it be accepted as sound, "it follows that acts sufficient to establish an ouster when proved as a defense, are insuffi- cient when proved as a cause of action." As an illustration he takes the case of an exclusive occupancy (similar to that shown in Newell v. Woodruff) under a claim of ownership in severalty, accompanied by the occupant's belief that his claim is unquestioned and unquestionable.

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