Slaughter

— This is an action of ejectment. The complaint alleges that on the first day of March, 1871 (the day of the alleged ouster), the plaintiff was “possessed and entitled to the possession” of the tract of land thereinafter described. It contains no other or further averment of title, seisin, or right to the possession; nor does it allege that the plaintiff was entitled to the possession at the commencement of the action. It is clear that a plaintiff cannot recover the possession unless he was entitled to it at the commencement of the action. The averment that he was entitled to the possession is not an averment, even by inference, that he is now entitled to the possession. No objection was taken to the complaint by demurrer, or in any other mode, in the court below on either trial or on the former appeal, and the matter is alluded to here simply for the purpose of repelling any presumption that might be raised from our silence that we regard the allegation as sufficient.

The plaintiff attempted to deraign title from Yorba, and for this purpose introduced a deed to himself from Yorba, *851 executed, after the defendant’s grantors had entered into the possession. He showed no paper…