Payne v. Treadwell

Citations

• 5 Cal. 310
• 1855 Cal. LEXIS 122

Syllabus

<p>The mere averments in a complaint tliat the plaintiffs have lawful title as owners in fee simple of the premises, and that the defendant is in .possession, and m - lawlully withholds the same, are insufficient to maintain an action of ejectment.</p> <p>The action of ejectment is merely a possessory action, and is confined to cases where the claimant has a possessory title; that is to say, a right of entry upon the lands. To support it, four things are necessary, viz : title, lease, entry, and ouster.</p> <p>Notwithstanding our statute has dispensed with the old form of pleading, and it is no longer necessary to allege a fictitious demise, still, facts sufficient must be pleaded to show the plaintiffs' right to recover, and it will not do to state conclusions of law in place thereof.</p> <p>In real actions, it is necessary for the demandant to allege, and, if traversed, prove a seizin in himself, or his ancestors through whom he claims; and in general. it is also necessary to aver that he was seized by taking the esplies or profits.</p>