This was ejectment for an undivided moiety of a quarter section of land. The plaintiff’s evidences of title consisted of — 1, A tax deed from the clerk of Jackson county to Baldwin and Jago, dated April 29, 1873 : 2, A deed of trust from Baldwin to a certain trustee for his interest in the premises, executed September 26, 1874, to secure the payment of a debt, with power to the trustee to sell and convey upon default; and, 3, A deed from the trustee to the plaintiff executed in pui-suance of said power. The complaint stated that the defendant was in possession of the whole tract and had refused, after demand made, to admit the plaintiff to the possession of one half of the land and its rents a,nd profits. It also averred upon information and belief that the defendant held under sundry mesne conveyances and licenses from Baldwin.
The answer did not deny that the defendant claimed under Baldwin, and therefore virtually admitted it. Gantt’s Dig. sec. 4608. It alleged no title whatever in the defendant, beyond a possession of recent origin, but excepted to the sufficiency of the plaintiff’s title deeds. These exceptions were overruled. The cause came on for trial before a jury, and the plaintiff had a verdict and judgment.
J;E^.ECT' s0uvceaon No doubt the tax deed standing at the head of the plaintiff’s claim of title is bad, if the defendant is in a position to assail it. But it seems to be well established that where the source of title is identical, and the parties have no other title to rely upon, it is not permitted to either to go behind the person from whom they hold, or show that his claim is not good. Both parties claiming under the same right, the plaintiff was not bound to trace back his title beyond the common origin, unless the defendant showed some title in himself aliunde. Riddle v. Murphy, 7 Ser. & R. 230: Jackson v. Hinman, 10 Johns. 292: Fitch v. Baldwin, 17 Id. 165: Douglass v. Scott, 5 Ohio, 124: Ward vs. McIntosh, 12 Ohio State 240: Woolfolk v. Ashby, 2 Met. Ky. 288.
same: Pleading*: J’Wf1™111' It follows from what we have said, that it was unneccs-2-sary for the plaintiff to deduce his title beyond Baldwin. If the defendant'held a title superior to Baldwin’s, or a title derived from Baldwin anterior to that of plaintiff, it devolved upon him to allege it and file the evidence of it. But his answer admitted that his own source of title ascended no higher than Baldwin. And in the absence of allegation and proof to the contrary, it must be presumed that it was junior and subordinate to that exhibited with the complaint.
The answer in truth presented no bar to the action and raised no issue to be tried.
Judgment affirmed.
DISSENTING OPINION BY