I shall consider these cases together; for although the pleas are not alike in all respects, one presents all the questions arising on the other, and the difference I shall notice in the proper place. .
It was admitted and cannot be denied, that the people of this state are the owners of all the lands within its limits that have not been granted to others. (Const. art. 1, § 11. 1 R. S. 718, § 1. Plow. 98. 2 Bl. 51, 3, 9, 60. 2 Kent, 320. 3 Id. 377, 487. Wendell v. People, 8 Wend. 188. People v. Denison, 17 Id. 312. Jackson v. Ingraham, 4 John. 163. Jackson v. Waters, 12 Id. 365. Co. Lit. 1. The West River Bridge Co. v. Dix, 6 How. 507. The U. S. v. Chicago, 7 Id. 185. Chipman on Prin. of Gov. b. 4, ch. 2.) Where it is not known of whom lands are holden, it is presumed they are holden of .the king. (1 Cruise's Dig. 13. Booth on Real Act. 135.)
It was said on the argument, that the clause of the constitution declaring that “ the people of this state in the right of sovereignty are deemed to possess, the original and ultimate property in and to all lands within the jurisdiction of the state, and all lands the title to which shall fail from a defect of heirs, shall revert or escheat to the people,” is not a declaration that the people are now the owners, but that they were, and also have the reversion and right of escheat. Neither the reversion, nor the right of escheat, raises a presumption in favor of a present right of possession. But the authorities above Cited go farther. They declare that the state has succeeded to all the rights of the crown. (And see The People v. Thurman, *1943 Cowen, 16; The People v. Hetkimer, 4 Id. 345.) And that “ the king is the universal lord and original proprietor of all the lands in his kingdom, and that no man doth or Can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services.” And our organic law, as we have seen, declares that the people possess the “ original” property in all the lands. The last qualification, “ to be held upon feudal services,” is abrogated by the same instrument; and indeed had been abolished before, by statute; but that does not affect the clause we are considering. (Const. of N. Y. art. 1, §§ 11, 13. 1 R. S. 718, § 3. An act concerning tenures, passed Feb. 20, 1787.)
Upon our independence, the people succeeded to the title to all the real property belonging to the crown; and while it remains in them, it is in many respects subject to the rules of law governing the same before the proprietary change. These rules differ from those incident to land owned by the subject in several important particulars, one of which is that the state cannot be disseised. Disseisin is the wrongful entry Upon, and ouster of, one seized of the freehold. (Co. Litt. 277. Williams v. Thomas, 12 East, 141. Toller v. Burtis, 6 John. 217. 1 Saund. Rep. 319, d, k.) And the king, by reason of his ubiquity, and of his prerogative, cannot be disseised. The authorities upon this point are very numerous. (Kent, C. J. in Jackson v. Winslow, 2 John. 80. Elvis v. Archbishop of York, Hob. 322. Co. Litt. 239 a, n. 5. Booth on Real Actions, 285. 2 Bl. 257. Saville, 68. 17 Vin. 176. 6 Com. Dig. 64, Prerogative, 71. 5 Bac. 562, Prerog. E. 6.) As then the king (or people) could not be disseised, it followed that he could not bring ejectment. He could bring nó action which supposes a dispossession. 11 For the king cannot be disseised, but all intruders are but trespassers to him.” (Elvis v. Archbishop of York, supra. 3 Bl. 257. Adams on Eject. 79. 2 Saund. Rep. 63, c. u. k.) An abator or intruder ousteth no one. (Runn. on Eject. 13.) One in possession cannot bring ejectment. (Jackson v. Hakes, 2 Caines, 335.) Of course, 1 speak of thé rights of the people before the law was changed by statute. 'The king’s lessee could bring *195ejectment. (Adams on Eject. 79. 3 Bl. 257, n. Lee v. Norris, Cro. Eliz. 331.) But in case of a trespass,, or entry upon the lands of the king, without title, the attorney general filed an information of intrusion, in the exchequer. (3 Bl. 261. 5 Bac. 566. Prerog. E. 7. Pl. Com. 547.) The information for the king is what, for a common person, ip called a declaration. (2 Lili. Abr. 75.) True, it was not intrusion, in some cases, until office found; as in case of a forfeiture, or condition broken, or idiocy, &c. (5 Bac. Abr. 564. Finch v. Throckmorton, Moor, 291.) Our statute permits an action of ejectment in case of escheat. (1 R. S. 282, § 1,).
Notwithstanding ejectment, as we shall see, may now be maintained by the people, it may be important to understand the nature of the proceeding known as an information of intrusion. It is said not to be “ real but personal, and to be resembled in all points to trespass; for it supposes the king in possession, as an action of trespass supposes a subject; and the land is not demanded or recoverable, but damages only, as in trespass; and the defendant is to be fined si convincatur de intrusions as in trespass, if he be found guilty of entry vi et armisA (17 Vin. 219.) And to this point, Viner cites the argument of Moore for the defendant in Perrot’s case, against whom information of intrusion was filed by the attorney general of Elizabeth, (Moor, 375.) And to the same effect, is a case in Saville’s Reports, (Sav. 68;) and also, Friend v. The Duke of Richmond, by Hale, Chief Baron, [Hard. 460.) But the pleadings in this proceeding have perhaps the most important bearing upon the case now under consideration. The information may be as general as ip trespass. (Manwood, Ch. B., Sav. R. 48, And see Id. 28.), And a form given in RastelVs Entries is not very special, though it gives the name of the close, and a very brief statement of the manner the queen became seised. (Rast. Ent. 412.) On the other hand, at common law the king, by his prerogative, might put th,e defetidant upon showing his title specially ; and if he pleaded not guilty, he should immediately be put out of possession. (5 Bac. 567, Prerog, E. 7. Com. Dig. Prerog. D. 74.) In a form in Rastell’s Entries, the information *196charged the intrusion to have been vi et armis, and the defendant pleaded not guilty to that, and specially as to the intrusion, &c. (Rast. Ent. 412, 13.) The defendant was not bound to plead more than showed he had title. But in doing that, it would seem he must be more certain and direct than in ordinary suits, (17 Vin. Ab. 251. Attorney General v. Meller, Hard. 451. Sav. 48. 5 Bac. Ab, 567.)
The crown had another advantage. The attorney general could traverse the title of the defendant, and the king had judgment unless the defendant showed good title. And if the king had been once seised, it seems he would hold the land against all having no title; although it were found the king had no title, and the defendant had possession before him. (King v. Bishop of Worcester, Vaughan, 64.) So in Lord Berkley’s case, on information of intrusion, the defendant pleaded that James Lord Berkley was seised .of the entire manor, in his demesne as of fee, and died so seised; and then set out title by descent, &c. to the defendant. The queen’s attorney denied that James Lord Berkley died seised; and the defendant took exception and said that he ought to have said that “ the queen was seised, .without this that said James died seised.” But all the court were of a contrary opinion in case of the queen ; and that she need not maintain her possession, for it will be intended that that continue. Though it was different with a common person. (Sav. Rep. 66. And see the same cause on page 64, Id. and a note of it in 17 Vin. 219.) This difference in pleading is sometimes put upon the ground of office found; but I have already remarked upon this. It is hardly possible to use stronger language than is used in our statute, and now in the constitution, in favor of the right of the people. Office found is not necessary in many cases, and. there is nothing in this case showing it to be one in which that would be required in England, Besides, as we have seen, if the king be once seised, the defendant must show a good title, whether the king has any or not. By the statute of 21 Jac. 1, ch. 14, the defendant was allowed to plead not guilty if the king or those claiming under his title had been out of possession, or had not received the profits of the land within 20 years before *197the information of intrusion was filed, and should not be ousted of his possession until the title were found or adjudged for the king. But under our new system, that provision is inapplicable, and previous to that had no force here.
Another familiar principle was, that no laches could be imputed to sovereignty; and it was privileged from the statute of limitations. That was so in England, and is applicable, as a general rule, to the state sovereignties of this country. (Co. Lit. 57 b. 6 Bac. Abr. 562, Prerog. E. D. U. S. v. White, 2 Hill, 60. Ball. on Lim. 69. 1 Cruise’s Dig. 284. 1 Cruise on Fines and Rec. 287.) So that, formerly, no length of possession would be a defence against the claims of the people, except in certain cases to raise the presumption of a grant. (3 Cruise, 558. Eldridge v. Knott, Cowp. 214. Matt, on Pr. Ev. 6. Mather v. Ministers Tr. Church et al. 3 S. & R. 509.) Adverse possession was therefore not properly predicable of crown property. And this was a natural consequence where no statute of limitations affected the crown, and the occupancy was presumed to be in subordination to the legal title. (Podger’s case, 9 Co. 106 a. 3 Cruise's Dig. 554. 2 R. S. 294, § 8.) And indeed where the suit by the crown is now barred under the statute, by the length of time, it is doubtful whether in England the intruder himself can bring any action for an injury to the property, (Goodtitle v. Baldwin, 11 East, 488. 1 Chit. Pl. 161, n.)
Such being the common law, the next inquiry is, what changes have been made by statute. And firstly as to the form of action.
By “ an act for the sale of lands mortgaged to the people of this state, and for other purposes,” passed February 17th, 1806, after reciting that “ whereas doubts have arisen whether an action of ejectment can be sustained by the people of this state; for the removal thereof,” it was enacted “ that every action of ejectment already commenced or hereafter to be commenced, by the people of this state, shall and may be sustained and prosecuted to judgment and execution in the supreme court of this state, In like manner as if such action had been commenced by an *198individual, any law or usage to the contrary notwithstanding.” And this provision is incorporated into “ an act concerning ac-. tions of ejectment commenced by the people of this state, and certain duties of the attorney general,” passed April 5th, 1813. (1 R. L. 484.) And also without the preamble in our revised statutes. (1 R. S. 180, § 10.) The words “sustained and prosecuted,” undoubtedly refer merely to' the use of the action, and the practice. It never was intended, nor has it ever been, supposed, to abridge the rights of the government. The “ consent rulo,” and the general issue, as a matter of course, followed,. The revision of the statutes in 1830, abolished, the former, but the defendant was still allowed to plead the general issue. It was equally a matter of form that the'plaintiff in all cases set out his title and an ouster in general terms. The proceedings in Jackson, ex dem. The People of the State of New- York v. Wendell, were in the old mode. (5 Wend. 142. S. C. 8 Id. 183.) And those in The People v. Denison, under the revised statutes. (17 Id. 312.) Ejectment had thus become a common and almost universal mode of recovering real property; simple in its pleadings and practice, putting the parties fairly upon trial upon the evidence.* But the code has abolished that action, ea nomine, at least, and swept away all the forms. Perhaps a plea that the plaintiff did not own and had no right to the possession of the land, would now be good in a case between individuals, if the complaint were general. It would be unjust for the plaintiff, by general allegations, to insist upon a view in detail of the defendant’s title. And besides, in suits between individuals, the plaintiff must rely upon the strength of his own title, and must show possession actual or constructive, within 20. years. (2 Saund, R. 63, c. k.) But it is a grave question how far, as to matter of substance, this new system revives the old principles of pleading. In early times, the party had to resort to, the form of action, real or possessory, which was adapted to his grievance; and, as every lawyer knows, they were very numerous. Those forms are all expunged from our legal proceedings. But if the titles to lands are to be settled by special pleadings, of necessity resort must be had to many of the principles found *199in those old precedents. And this case, in some degree, illustrates this remark.
The old Common- law rule in relation to laches, to which we have adverted, has a-Iso undergone material variations by statute. The first innovation was by the statute of 21 Jac. 1, c. 2, by which it was 'declared that the king shall not thereafter sue any person for lands, nor make any claim thereto, by reason of any right or title accrued 60 years past or more, and then in esse, unless he or his predecessors, or some other under whom he claimed, had been answered by force of such right or title the rents, issues and profits thereof within 60 years before the beginning of that parliament; or unless the same had been duly in charge to the king within 60 years, or had stood insúper of record within that -time. And that all persons, according to their several estates and interests which "they had or claimed to have respectively, should thereafter quietly hold against his majesty, his hfeirs and successors claiming by any title, accrued or grown 60 years past, or above, and then in esse, all lands which they or their ancestors, or those from, by, or under whom they claim, had held and enjoyed, or taken the rents, revenues, issues or profits thereof by the space of 60 years, unless his majesty had been answered, &c. (as before.) See 17 vin. 221.) This law by lapse of time became inoperative, and the statute of 9 Geo. 3, ch. 16, (1769,) called the nullum tempus act, was passed. This provided that the king should not sue for lands or make claim to the same by reason of any right or title which had not accrued or grown within áxty years before suit, unless he had been answered the rents, ifcc. within that time, or the lands had been in -Charge, or stood insuper of record, within that time. Our statute, applicable to this case, was passed April 8th, 1801, (1 K. & R. 562, and 1 R. L. 484. And see the original act, 2 J. & Y. 260; and our present statute, 2 R. S. 292.) That statute declares that the people will not sue for lands, &c. or the issues or profits thereof, by reason of any right or title of the people to the same, which shall not have accrued within the space of forty years before suit, unless the said people, or those ’under whom they claim, shall have received the rents and profits, *200or of some part thereof, within the space of forty years; and in any case where such title shall not have accrued within the time aforesaid, unless such rents and profits shall have been received as aforesaid, those holding such lands shall freely hold and enjoy the same against said people, and against all persons claiming by or under them. In the case of William. P. ■ Van Rensselaer and others, the answer is almost literally in the words (negatively) of the statute. The defendant Stephen Yan Rensselaer concludes his answer in nearly the same manner.
It will not be seriously contended, that, where the lands of the state have always been vacant until some recent intrusion, the people must fail unless they show a title which has accrued, or was first acquired by them, within forty years, or the actual perception of profits within that period. Such a rule would put all our public lands in jeopardy, and in the power of the first squatter who may be disposed to enter. And it would be a narrow construction to say, because the lands are wild) the state is presumed to have received the rents and profits. That is hardly more than a quibble. The term “ rents and profits” is well understood. No doubt one may receive the profits of land by his own occupancy. So “or” and “and” are sometimes synonymous. (Smith on Const, and Stat. 732, 3.) And if rents or profits were received, it would be a compliance with the statute. They often mean the same thing; though rent is a tribute which issues out of land, as a part of its actual or supposed profits; and the word “ profits,” means yearly “ profits.” (Ivy v. Gilbert, 2 P. Wms. 13. 2 Ves. jun. 480, and notes. 1 Atk. 506.) It would be an inference from an inference, first to presume that the state is in possession because it has title, and then presume it to be in the receipt of profits because of such possession. The real intention is to govern, and no interpretation should be given which takes away the public rights. (Mag. Coll, case, 11 Co. R. 73. Dwarris on Stat. 690, 1, 2.) The reasonable construction is to place the case upon the possession of the defendant or his predecessors. Actual possession by the people is literally impracticable, and so is possession of all our wilderness by tenants. Such a construction will save the rights *201of the people, do no injustice to individuals, and is consistent with general principles. The people are presumed to have the title. And until that is shown to be out of them, the presumption being that the possession is not adverse, the occupancy is in subordination to the title. The statute, as will be seen by comparison, is substantially a copy of a part of the act of 9 Geo. 3. There the crown had no such tracts of wild lands. Yet an actual possession of sixty years is considered necessary to bar the king. The language of Lord Ellenborough, in Goodtitle ex dem. Parker v. Baldwin, is, that the “ statute only takes away the right of suit of the crown or those claiming from the crown, against such as have held an adverse possession against it for sixty years.” (11 East, 495.) And Blackstone says, “so that a possession for sixty years is now a bar, even against the prerogative, in derogation of the ancient maxim nullum tempus occurrit regi.” (3 Bl. 307.) And to the same effect are Cruise and Adams. (3 Cruise's Dig. 559. Adams on Eject. 78.) In Wendell v. The People, (8 Wend. 183,) and The People v. Denison, (17 Id. 312,) it was decided that on proving the premises had been vacant within forty years, prima facie, the people were entitled to recover. Thus by breaking in upon the possession of the defendant, or of those under whom he claims, for a day, he is put upon the strength of his own title. Showing clearly that, as to the statute, the question is upon the defendant’s possession. I have not been able to discover any authority or principle of law requiring the people to show even this; but 1 think these cases conclusive against the construction contended for by the defendants. The phrase in the statute, “ the persons, &c. holding such lands,” may be understood to mean those who, or whose predecessors, have possessed them during the period of forty years. One never loses his land unless there is a continued and adverse possession. (Butler v. Phelps, 17 Wend. 642. Jackson v. Vail, 7 Id. 125. 24 Id. 587. Little v. Heaton, 2 Ld. Ray. 750. Ziller's Lessee v. Eckert, 4 How. U. S. R. 289.) And it can not be supposed that the legislature intended to adopt a rule, at once novel and dangerous to the interests of the state.
*202But it is contended that, admitting this to be the construction, an answer in the words of the statute means what the statute means; and all this is matter of evidence On the trial. This seems plausible; but, as a general rule, will not bear the tests of the principles of pleading or of practical use. In criminal cases, and in penal actions, sometimes it is sufficient to charge the offence in the words of the statute; and sometimes it is not. (The People v. Taylor, 2 Denio, 91. U. S. v. Mills, 7 Pet. Rep. 142. U. S. v. Gooding, 12 Wheat. 460. Arch. Cr. Pl. and Ev. 47. People v. Barton, 6 Cowen, 290.) Particularly after verdict. (Wright v. Horton, 1 Stark. R. 400.) And this is sometimes so in civil cases. But courts will take notice of the privileges of the state. (1 Chit. Pl. 245.) And though the act be public, the defendant should state those facts which bring his case within it. (2 Saund. R. 155, n. 4.) And it has been" held in several cases, that it is not sufficient to plead the statute of limitations in the words of the statute. For instance, where the government becomes possessed of, and prosecutes a claim, ■ and the statute is interposed, as the government is privileged from the statute, the defendant must plead that the cause of action accrued six years before the plaintiff acquired title to it. Mr. Justice Cowen intimated that this was not the case where the statute had begun to run before the transfer. (U. S. v. White, 2 Hill, 59.) But the remark was obiter in that case; and where the payee and owner of a note became felo de se, in a suit thereupon by the king, a plea that the cause of action did not accrue within six years before suit, was held bad, and judgment given non obstante veredicto. It should have been that the cause of action did not accrue within six years before the death of the former owner; for after that the statute ceased to run. (Lambert v. Taylor, 4 B. & C. 138.) And in a case where a criminal charge was set out in an affidavit in the words of the statute, although the court, with hesitation, in a collateral suit, held that it gave jurisdiction, they spoke of the practice as highly reprehensible. (Mills v. Coltett, 6 Bing. 85.) The facts must be set forth according to their legal effect. (Henderson v. Henderson, 3 Denio, 314. Goodrich v. Pendleton, 3 *203, John. Ch. R. 391. Peake v. Carrington, 2B.Sp B. 399.) So in this case, unless the defendants, or those under whom they claim, had held or occupied the land in question forty years, the statute would not avail them. This fact is entirely omitted in the answer. Suppose the attorney general had gone to trial upon this answer, would not the defendant have insisted he had proved his plea ? Had they pleaded bare possession for forty years, perhaps that alone would have been a defence, or at least, have changed the onus, although the possession was not alledged to be adverse. The people in their sovereignty have said, they will not sue where individuals have possessed it that period; though the elementary writers and decisions speak of an adverse possession. That was the language in Wendell v. Jackson and The People v. Denison, and of several of the authorities before noticed. But this point need not be anticipated.
In addition to the statute, the answer of Stephen Van Rensselaer denies that the plaintiffs had good title; denies they were the true owners of the lands or entitled to the possession ; and admits that he has taken possession and occupies, and enjoys the land; and claims and holds the same adversely to the plaintiffs. This in substance is only that the plaintiffs have no title, and that the defendant, at the time of commencing the suit, held adversely. Adverse possession at the time the suit is commenced, alone, never prevails. It is time that gives it efficacy. Nor is the general denial of the plaintiff’s title sufficient. We have seen that, as against the people, the defendant must show title in himself, or a continuous possession of forty years. Every plea should be so pleaded as to be capable of trial. (Frary v. Dakin, 7 John. 78.) The people are declared to be the original and ultimate owners of all the lands within the state. The defendants merely deny this in the most general manner, which is in truth only a denial of a presumption of law. Under the code I think this insufficient, in a suit by the people. The defendant may controvert, generally, the allegation in the • complaint, but he must do it issuably. Upon these pleadings, on the trial, who is to begin; and what are the plaintiffs to prove ? It would be preposterous for them to prove the law. *204and then call on the defendant to show how they had lost title. Nor should the defendants, after the people have set out their title as far as they can, keep the plaintiffs in the dark as to their defence. Certainly this, as we have shown, is not allowed in England. (And see the late case of the Attorney General v. Donaldson, 10 M. & W. 117.) Attorney General v. Lord Eardley and others, (8 Price, 39,) was pressed at bar. That was an information against Lord Eardley as owner and occupier, and the others as occupiers, for an account of titheable matter, which it was said they had taken from lands that had been drained in time of Charles 2d, and had since yielded tithe-able matter, and which were alledged to be extra-parochial, and therefore the tithes belonged to the king. Part of the defendants insisted that the king was barred by the lapse of 60 years. The crown, to prove they had been in charge, relied upon the fact that, in the accounts of successive auditors of extra-parochial tithes, they, for more than 60 years, had been returned “nil.” I do not consider this case against the plaintiffs. The pleadings set out the rights of the parties, and the attorney general evidently supposed that merely showing the lands on the .books in the exchequer, although nothing had been received from them, was sufficient. That placed them “ duly in charge.” (17 Vin. 221. 1 Tom. Dic. 346.) And again, tithes, presumptively, belong to the church. (Slade v. Drake, Hob. 296.) And the king, not as a layman, but as persona mixta, is entitled, jure coronce to those extra-parochials. That is, not within any parish, as forests and the like. (Bish. of Winchester’s case, 2 Co. R. 44, a. 2 Inst. 647. Att’y Gen. v. Eardley, supra.) The case would have been very different, if he had been the “ original and ultimate” owner of all the tithes in the kingdom. This authority, therefore, is not in conflict with those already cited, in cases of intrusion; and if it were, would not overrule them.
Under our present system of pleading, I think both answers insufficient:
There must be judgment for the plaintiffs; with leave to vamend on terms.