Odger's English Common Law

THK PLAINTIFF'S TITLE. 441
defendant asserts that he is in possession of the land by the
permission of the plaintiff, he thereby admits that the plaintiff
had the right so to place him in possession. In other words,
he admits the plaintiff's title at that date, though he may con-
tend that it has since determined, as, for instance, if the lessor
himself had only a leasehold interest. 1
Where, however, there is no suggestion that the defendant
received possession from the plaintiff or has paid him rent, the
onus lies on the plaintiff of strictly proving his title, and he
must state his title in full detail in his pleading. 2 On the other
hand, the defendant is allowed to state merely that he is in
possession, and thus to conceal all defects in his title. 3
There are also many other differences between the procedure
in an ordinary action and that in an action for the recovery of
land ;
these are discussed in a later chapter. 4
The plaintiff in such an action must recover by " the
strength of his own title, and not by the weakness of the
defendant's " title
;
6 for the law deems any one who is in
possession of land to be the owner of it until the contrary be
proved. 6
Hence, where the relation of landlord and tenant
does not exist between the parties, the plaintiff must show
in himself a good and sufficient legal title to the land claimed
he must show that he is either the freeholder or a person
claiming under the freeholder. But if he claims as heir-at-
law of A., it will be sufficient for him to prove that A. was
in possession and that he is A.'s heir ; the law will presume
that A. was seised in fee, until the contrary appear. If the
defendant can show that some third person has a better title
than the plaintiff, this will be a sufficient defence, although
such third person has never agreed or consented to the defen-
1 Barwiok v. Thompson (1798), 7 T. R. 488 ; Cutlibertso n v. Iri-ing (1859), 4 H. &
N. 742 ; (1860), 6 lb. 135 ; Belaney v. Fox (1.857), 2 C. B. N. S. 768. Where the
privity is not between the immediate parties to the action, the claimant will
also have to prove his derivative title from the party by whom the defendant
was originally admitted into
8thed..pp. 128— 138.
possession. See Odgers on Pleading and Practice,
8 Ph.ili.pps v. Philipps (1S78), 4 Q. B. D. 127, followed in Davis v, James (1884), 26
Ch. r>. 778 ; but see Darbgshire v. Leigh, [1896] 1 Q. B. 554.
s Unless he relies on some equitable defence, in which case he must plead it
specially : Order XXI., r. 21.
* Book V., Chap. XIX., post, p. 1254.
s Per Lee, C. J., in Martin v. Stracham, (1743), 5 T. E. at p. 110, n.
6 Asher v. Whitlock (1865), L. B. 1 Q. B. 1.
;