The opinion
McKinstry, J., concurring:
I concur in the judgment. It has been repeatedly held here that ownership—seisin in law—is to be treated as a fact both in pleadings and in findings. The seisin of plaintiff at the commencement of the action and the possession of the defendant at the commencement of the action are, under our system, the material facts to be alleged and proved by plaintiff in the class of actions which, for the want of a better name is called “ejectment.” As said by Mason, J., in Walter v. Lockwood, 23 Barb. 233 , “the facts constituting plaintiff’s cause of action in this case are that he has lawful title *422 as owner in fee simple, and that the defendant is in the possession and unlawfully withholds the possession thereof from him.” “Now, what is the issue ? The plaintiff alleges that he has lawful title, as owner in fee simple, to these premises. This is denied by the answer, and a perfect issue is made upon the plaintiff’s title,” etc. And by Field, C. J., in Payne v. Treadwell, 16 Cal. 243 : “Now what facts must be proved to recover in ejectment? These only: That the plaintiff is seised of the premises, or of some estate therein in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action. The seisin is the fact to be alleged. It is a pleadable and issuable fact, to be established by conveyances from a paramount source of title, or by evidence of prior possession,” etc. (See also People v. Mayor, etc., 28 Barb. 240 : 8 Abb. Pr. 7 ; S. C., 17 How. Pr. 56 ; Walter v. Loclctvood, 4 Abb. Pr. 307 .) The plaintiff recovers because defendant is actually possessed of that which the plaintiff has the right to possess when he goes to Court for redress.
Aside from the question of ouster by the defendant, the material question is: Was plaintiff seised of an estate which gave him the right to immediate possession when he brought his suit ? He may prove his right by evidence of facts—as a conveyance from the source of title, or a prior possession—of a date anterior to the commencement of the action. In such case, the seisin of the plaintiff is presumed to have continued until suit brought. But such presumption has no place in the construction of his pleading, which should aver the ultimate and material fact.
In the case before us the Court below found that on a certain day one Bee was the owner of the demanded premises, who sold and conveyed the same to plaintiff, and that, subsequently, on a day four years prior to the commencement of the action, plaintiff conveyed to one Mary Kidder, under whom defendant claims.
Appellant urges that the findings do not pass upon the ultimate issue—plaintiff’s ownership and consequent right to the possession—at the time of the commencement of the action. Had the complaint alleged that plaintiff was seised in fee when the suit was brought, appellant’s point would *423 have been well taken. The findings do not show but plaintiff re-acquired the right to the possession intermediate his conveyance to Mary Kidder and the commencement of the action. There is no finding that either plaintiff or defendant is or was at the commencement of the action the owner seised in fee or of a less estate, or otherwise entitled to the possession of the demanded premises.
But the complaint here only alleges that, on the first day of June, 1879, “the plaintiff was the owner, seised in fee,” etc., and that while the plaintiff was so the owner, etc., “ the defendant did,on or about the said first day of June”enter into and oust plaintiff from the premises, “and ever since that day has wrongfully withheld,” etc. The precise date of the ouster is immaterial, but the plaintiff must prove it to have occurred prior to the commencement of the action. This action was commenced November 29,1879. There is no averment that plaintiff is seised, in fee or otherwise. The allegation of a wrongful withholding is of a conclusion of law, which can follow only where facts are alleged which show plaintiff to be entitled to the possession when the suit is brought. If the Court below, adopting the language of the complaint, had found “on the first day of June, 1879, the plaintiff was the owner seised in fee,” etc., such finding would not have been determinative of the issue which is one of the two material issues in this form of action. Then it might have been said: “Non constat but plaintiff parted with his title before he commenced his action.”
The objection of plaintiff is that the Court below failed to find upon the ultimate issue—was plaintiff the owner and entitled to the possession of the demanded premises when he brought his action? Such a finding, however, would have been broader than the issue, since the averment of the complaint is not that plaintiff is the owner (or was at the commencement of the action), but that he was seised in fee at a definite point of time long previous to the commencement of the action.