requires a particular examination. It may be properly presented under the form of the question whether the holder or possessor of a purely equitable primary right, or the owner of a purely equitable estate or interest, can maintain an action to recover a remedy which, before the change in procedure, was purely legal; or, to express the same thought in terms not entirely accurate, but which are, nevertheless, in constant use, whether such holder of a purely equitable primary right, or owner of a purely equitable estate or interest, can maintain upon it an action at law to recover an ordinary legal judgment, either for possession or for damages; to put the same question in a concrete form by limiting it to a particular class of rights and remedies, whether the owner of an equitable estate in land can maintain an action analogous to ejectment? The action of ejectment was originally invented to enable a tenant for years to recover possession of the demised premises during the term, the ancient real action being confined to freehold estates. It was, during its existence and use as a strict common-law instrument, a possessory action; and a judgment rendered in it never determined the question of title. Its use in trying titles was wholly a matter of convenience: no rule of the common law made it a means of settling a disputed controversy as to title. Nothing but the voluntary acquiescence of the defeated party enabled it to produce even the semblance of such a result. Action after action might be brought, and the common law placed no obstacle in the way of such a succession of attacks. Equity alone devised the cumbrous method of an injunction suit to restrain the further prosecution, and to quiet the title of the party who had succeeded in several trials at law. Since the common law paid the most rigid adherence to external forms, it is true that the action of ejectment, until changed by statute, was never used except for the recovery of demised premises; and this form was preserved in the absurd fiction of making John Doe, as tenant of the real claimant, the plaintiff on the record. As the estate for years, to protect which the action was originally invented, was a legal estate, the rule grew up, and was followed without exception, and from the very necessities of its form, that the action of ejectment could only be employed as a means of recovering possession of a legal estate. The common law undoubtedly knew no such thing as ejectment by the owner of an equitable estate, or the holder of an equi

table title; such estate or title could only be protected by a court of equity.

*

§ 37. 99. Arbitrary and Technical Character of Old Rule. Distinction Abolished by Code. View still Entertained by some Courts. Criticism. This rule, however, was always a matter of mere external form; it was one of the formal incidents of the action, as arbitrary and technical as the fiction of the plaintiff being a lessee. When the statute abolished all the distinctions between actions at law and suits in equity and between the forms of such actions, one might naturally have supposed that the formal rule thus described would have been at once abandoned. On the contrary, the courts of certain States, in which the new procedure has been adopted, continue to speak of actions of ejectment as though they were existing and fully recognized judicial instruments, with all their ancient and arbitrary incidents and requirements; as though, in fact, there had been no great change sweeping away the very foundations of the ancient system. It is true, this reform legislation has not altered any primary rights nor final remedies; an equitable right or estate is not turned into a legal right or estate; and the remedies of pecuniary compensation and of possession of lands or chattels which were called legal because they could only be obtained by actions at law, and the other specific kinds of relief which were called equitable because they could only be obtained by suits in equity, are left unaffected. One great change, however, has taken place which some courts seem at times to have forgotten; all these remedies are now to be obtained by a single civil action, which it is neither appropriate to call legal nor equitable, because the distinctions between legal and equitable actions have been destroyed. It may be well enough, in order to avoid circumlocution, to describe one class of remedies as legal and another as equitable, if it be constantly remembered that this nomenclature no longer depends upon the kind of action used in the pursuit of these remedies, and that they are all pursued and obtained by means of one action which has no distinctive and peculiar features depending upon the species of remedy granted through its instrumentality.

§ 38. *100. Question Stated in Paragraph Thirty-six Answered upon Principle. Argument. Assuming these elementary doctrines of the new system of procedure, I am enabled, by applying them, to answer the proposed question upon principle; I shall then com

pare the results thus obtained with the rules laid down by judicial decision. It must be conceded at the outset that every primary right, whether legal or equitable, when invaded, should have a remedy or remedies appropriate to its nature and extent. When the right is possessory, there should be a remedy which restores possession; when the right involves the ownership or title, there should be a remedy which establishes the ownership or title, or which restores the owner to his full dominion by removing obstructions to or clouds upon his title. The law gives these classes of remedies; and the confusion into which some of the courts have fallen in reference to this subject results from a failure to distinguish between these two kinds of primary rights, and the two corresponding kinds of remedies; from an utter confounding of possessory rights with rights of ownership, and possessory remedies with remedies going to the ownership. Now, it cannot be doubted that where the question is concerning ownership, where the primary right invaded is one of ownership or title, and the remedy sought is correlative thereto, the equitable right must have an equitable remedy. If a person is clothed with an equitable title or ownership, from the very nature of the case his remedy must be equitable, because the positive relief which he needs in almost all cases is the conversion of this equitable ownership or title into a legal one, which can only be done by a remedy within the competency of equity tribunals, — by a specific performance, a reformation, a re-execution, a cancellation, and the like. The only exception to the kind of relief described the turning the equitable title into a legal one-is the remedy of injunction, which is often necessary, and which does not change the nature of the title, but leaves it as it was. When, therefore, the object of the action and of the remedy demanded relates to ownership or title, unquestionably the equitable title must be judicially protected and aided by a remedy that is purely equitable, and cannot be thus protected and aided by a remedy which is in form legal.

§ 39. *101. Conclusion. This, however, is not true when the right is possessory, and the remedy demanded is a mere transfer or restoration of possession. There are equitable primary rights, titles, and ownerships which entitle the holder thereof to the undisturbed possession of the land which is the subject-matter of the right or title. This proposition cannot be

denied. A large part of the remedies once given by the Court of Chancery alone, and the whole range of equitable defences now allowed in legal actions, are based upon the conception that the equitable owner is entitled to possession as a part of his right. To deny this is to turn many of the familiar rules of the law into absurdity, and to render much of the relief given by the courts self-contradictory. When the vendor under a land contract sues the vendee in possession to recover the premises, and the latter interposes his equitable right as a defence, and succeeds in defeating the action brought against him, that success is entirely due to the fact that he is entitled to the possession by virtue of his equitable title. Now, what the law permits to be done defensively, for the same reason, and by the application of the same principle, it should permit to be done affirmatively. There is no distinction in principle between the two cases. It is simply absurd to say that a person in possession under an equitable title may defend and be kept in his possession by exhibiting that title in a legal action, but that, if he is out of possession, he shall not be allowed to recover his rightful possession by exhibiting his title in the same kind of action. In fact, when the courts, with almost perfect unanimity, decided that the equitable owner may rely on his title as an absolute bar

a merely negative defence to the so-called action of ejectment brought against him, they decided in principle that he may obtain possession in the like action. Whenever, therefore, a person clothed with an equitable title or ownership which by its nature entitles him to the immediate possession of the land as against the party actually in possession, and he desires simply to obtain the possession, there is nothing in principle which can forbid him to maintain an action for that purpose, and recover the possession. To call such an action "legal" is no answer; for the rule which forbade an equitable right or title to be enforced or even recognized in a court of law was a mere arbitrary matter of form, and has been expressly abolished. To call the action "ejectment" is no answer, because there is no such action, and all the technical rules which prevailed in respect to it at the common law have been swept away by the legislative command. The courts which now speak of "ejectment" as an existing species of action, and which apply its rules to an action now brought to recover possession of land, are so far disregarding the

express terms of the statute and thwarting its plainest design. It is true that all equitable ownerships and titles do not carry with them the right of immediate possession of the land, and this argument is carefully limited to those which do involve this element in their proper nature. It might seldom happen that the equitable owner would be satisfied with a mere possessory remedy, but there are circumstances and situations in which, and parties against whom, such remedy may be very important, and may perhaps be the only one practicable. To illustrate by the most familiar and plain example, that of a vendee under a contract to convey land. Assume such an agreement completely fulfilled by the vendee. He is the equitable owner, and entitled to possession as against the vendor, and therefore as against all the world. Beyond a doubt as against the vendor, this equitable owner would prefer to bring an action to obtain a specific performance, and thus at one blow to consummate his title and remove all obstacles to the full enjoyment of his ownership; but if he chooses to ask for a part instead of the whole, upon what grounds of principle, upon what reasons of policy, shall the courts refuse to award him the possession by compelling the vendor, who wrongfully withholds, to surrender it up? To say that the vendor has the legal title is no answer, and is a mere arguing in a circle, because the action and the remedy do not concern the title, and by the conceded rules of the law his legal title does not enable the vendor to retain possession from the vendee. If, however, a third person without color of right, and not the vendor, withholds the possession, the reasons in favor of the vendee's maintaining the action are still stronger. Is it answered that in ejectment the defendant may succeed by proving legal title out of the plaintiff, because the plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant's? This, again, is a mere formula of words without any real meaning. There is no action of ejectment. The action supposed to have been brought is simply one to recover the possession to which the plaintiff is entitled from a defendant who has no right or color thereof; and at best the rule invoked is the arbitrary result of external and technical forms clustered about the common-law action, all of which have been swept out of existence with the action itself. Unless, therefore, it is established that the common-law form of action called