Norris

Murray, C. J., concurred.

The first objection is to the form of the declaration, because it does not aver title, but avers simply a prior possession and an ouster. This is all that is required in a technical action of ejectment, and certainly we cannot be more strict under our system, which is intended to allow much indulgence in the forms of pleading. In the action of ejectment, it was necessary to declare upon a fictitious demise. If, as it is said, the fiction in this State is abolished, (which we have never decided, and are not now called on to decide,) then it follows that the remedy remains without the fiction; in which case, the plaintiff must declare upon his possession, without the necessity of showing a demise.

Second, It is objected that the defendant had color of title, although his possession was subsequent to the plaintiff's, and therefore it is urged his possession ought to prevail. But it must be held in view, that prior possession is evidence of title, and this can not, by any system of reasoning, be made to yield to mere color of title; or, in other words, to that which is not title.

Third, To sustain a title by virtue of a Tax Collector’s deed, it has, by the…