Salstonstall vs. White

Salstonstall vs. White. EjeBment. "PROCEEDINGS in ejeQment for A the Holland Company lands,, fo called, in the county of Ontario, as for a vacant poffeffion. D. A. Ogden moved that Wilhem Willinck and three others, commonly called The Holland Company, be made defendants, inftead of Salftonitall the prefent defendant. Troup on the fame fide. Any one whatever claiming title may be made defendant, though he has never been in a£tual poffeffion; and to this point cited Sty. 368. Sid. 24. 1 Lilly’s Abridg. 674. 4 Durn. & Eaft. 122. Comb. 13. E. Livingston contra. It is fettled that in proceeding for a vacant poffeffion, one claiming title, who is not already a party to the fuit, cannot be admitted to defend, but muft refort to his aftion of ejectment. He cited 2 Cromp, 191, 192. Statute of this State paffed 21ft Feb. 1788, feel. 29. 30. the firft of which fetlions fubjefls tenants to penalties for not giving notice to their landlords of declarations in eje&nent; and the laft of which provides that landlords may be admitted defendants by being joined with their tenants. From which it follows that no cafe is contemplated by our laws of admitting any one to come in and defend who is not a party to the original fuit, except a landlord who has a tenant in pojjejjion. B, Livingston in reply. In this café the lands, in judgment of law, are not vacant. The fuit is brought to recover feveral hundred thoufand acres, and it appears by the affidavit, that the Holland company have furveyed the traól, and erected buildings on fome part of it. [MAJORITY — Per Curiam.] Per Curiam. The ftrift principles applicable to proceedings as for a vacant poffeffion in England, cannot, without manifeft inconvenience, be applied to unlocated lands in this country. Befides, here has been a furvey of this land, and buildings have been eredied on fome part of it. Motion granted.