Payne

Heydenfeldt, J., concurred.

The declaration in this case alleges “ that the plaintiffs have lawful title as owners in fee simple of the premises, and that the defendant is in possession and unlawfully withholds the same.”

Treating this as a declaration in ejectment, it is insufficient, under the most liberal construction of our Practice Act. The action of ejectment is merely a possessory action, and is confined to cases where the claimant has a possessory title—that is to say, a right of entry upon the lands. To support it, four things are necessary, viz., title, lease, entry, and ouster.

notwithstanding our statute has dispensed with the old form of pleading, and it is no longer necessary to allege a fictitious demise, &c., still I apprehend that facts sufficient must be pleaded to show the plaintiffs’ right to recover, and it will not do to state conclusions of law in place thereof.

The allegation that the defendant is in possession, and unlawfully withholds the premises, is insufficient: it is a conclusion of law drawn from the character of the defendant’s possession, the circumstances of which should be stated.

*312 For aught we may know, the defendant may be in…