By the Court.
Warner, J.delivering the opinion.
[1.] On the trial of this action of ejectment, the Jury found a verdict for the plaintiff for the premises in dispute, and two hundred and twenty-five dollars damages for mesne profits, &c. The defendant in the Court below, moved for a new trial on two grounds. First, because the Court erred in its charge to the Jury, on the subject of possession by the defendant, as stated in the record; and second, because the Court admitted in evidence the receipts of the defendant to the Rail-road Company.
To enable a plaintiff in an action of ejectment to recover, *169when his title to the premises is controverted, he must prove— first, that he had the legal title to the property in dispute at the time of the demise laid in his declaration; secondly, that such legal title was accompanied by a right of entry, and thirdly, that the defendant, or those claiming under him, were in possession of the premises at the time when the declaration was served upon him. Adams on Ejectment, 247. 2 Greenleaf’s Ev. §304. Goodright vs. Rich, 7 Term Rep. 323.
[2.] Was there any evidence before the Jury, of the defendant’s possession of the premises in dispute ? The evidence not only shows that the defendant was in possession of the lot of land; that he cut, and carried off a large quantity of timber and light-wood, which he sold to the Railroad Company; but that while he was thus in possession, exercising acts of ownership, he claimed to have purchased the land from a man in Mississippi. The evidence, therefore, shows that he was in possession of the land, exercising visible and notorious acts of ownership over it, and atthe sametime, claimed to be the absolute oioner by purchase.
The complaint is, that the evidence did not show he was in possession at the precise day the writ was served on him. The defendant did not live on the land, but had been, from time to time, cutting timber thereon, by his hands, and hauling it to the rail-road. One witness says the defendant got one hundred cords of lightwood off the lot; another witness states that he got 1500 or 1600 cross-ties off it, and was frequently seen there at work with his hands, claiming to be the owner of the land. He certainly exercised such acts of authority and dominion over it, as owners usually do over their own lands, who are in possession thereof: and there is no evidence that he ever abandoned, or disclaimed the possession which he asserted as such owner, by having purchased it from a man in Mississippi.
On this state of facts, the Court below very properly left the question of possession to the Jury; instructing them as it did, that the plaintiff could not recover, unless he had satisfied their minds by proof, that the defendant was in possession of the land, at the time of ike commencement of the suit.
*170The Jury have found by their verdict, from the evidence, that the defendant was in possessionat the ti?ne of the commencement of the suit. According to the facts of the case, as exhibited on the face of the record, the question of possession was fairly submitted to the Jury by the Court in its charge.
The fact that Gray was shown to have been in possession of part of the lot, does not necessarily exclude the possession of the defendant as to the remainder of. the tract; both may have been in possession. Gray not being sued, will not be ousted of his possession, unless he holds as a tenant under the defendant, who said he was the owner, and therefore, presumed landlord of the premises, to whom the other tenants may have attorned in the absence of the true owner.
The receipts given to the Railroad Company were properly admitted in evidence, to show that the defendant received pay for the wood and timber as his own right and property, in order to rebut the presumption that he was acting as the agent or tenant of another person, when he cut the timber off the land, and sold it. The receipts went to confirm what the plaintiff contended for; that he was in the possession and enjoyment of the land as his own, hauled oft the lightwood, cut and sold the timber as his own, and received payment therefor, as bona fide owners of property usually do. We entertain no doubt this is a. just verdict against the defendant, and the Court below was right in refusing a new trial. Let the judgment of the Court below be affirmed.