command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. In an action by an heir to enforce a forfeiture for the non-performance of a condition subsequent, as stipulated in a conveyance made by the ancestor, the complaint must not only show the heirship, and the fact of the conveyance and its conditions, but also that the ancestor was the owner in fee at the time.30 § 228. Title in Actions founded on Leases. Premising that the landlord, in an action against his lessee, need not allege title, inasmuch as the tenant is estopped from disputing it, the circumstances under which it becomes necessary in an action upon a lease, are thus stated by Chitty: 31 "In an action on a lease at the suit of the assignee of the reversion, or of the heir of the lessor, or by an executor of a termor, for rent which became due after the death of the testator, the declaration must state the title of the lessor to the demised premises, in order that it may appear that he had such an estate in the reversion as might be legally vested in the plaintiff in the character in which he sues, and legally entitle him to recover the damages claimed in respect of the breaches of the covenant." This distinction is based upon the fact that the tenant has only acknowledged the title of the lessor and his right to sue, and in order to determine whether his assignee or representative succeeded to his right, it becomes material to inquire into the nature of the original estate, as well as his relation to it.32 If one sues as heir, he must show how he is heir, as well as the nature of the estate; otherwise, he fails to set out his title; 33 he 30 Clark v. Holton, 57 Ind. 564. 31 Chit. Pl. (Ed. 1877) 363. 82 See precedents in 2 Chit. Pl. (Ed. 1867) 560 et seq. 23 2 Saund. Pl. & Ev. *45e, note; Id. 7, note 4; 1 Chit. Pl. 368; Steph. Pl. 310. It is held in Kentucky that, the plaintiffs having alleged that they were heirs of decedent, having sued in that capacity, and the fact not having been denied, the allegation should be taken as true, and that it was un does not show the facts that constitute it, and in saying that he is heir he states a legal conclusion. An assignee must also show the assignment, and the executor or administrator the facts establish ing his representative character." § 229. When Title need not be shown. Some of the exceptions to the rule requiring the plaintiff to set out his title to the property in respect to which his right of action has accrued have been alluded to. Thus, the statute sometimes dispenses with the necessity in the action to recover real property, where upon principle the obligation would be imperative. The action upon a lease for rent between the landlord and his lessee, or for other breach of its conditions, is based upon the contract; the title is not involved, and so long as the tenant is in under him, it cannot be put in issue. It is sufficient, therefore, to set out the lease without showing the lessor's right to make it. Also in trespass quare clausum, possession being all that is necessary to au thorize the action, it is sufficient to describe the premises in general terms as the property of the plaintiff, or to say that he was lawfully possessed-as, of a dwelling-house or field-provided a wrongful entry is charged. § 230. 2. Title to personal Property-General Allegation of Ownership sufficient. In an action in respect to personal property, the necessity of showing title, or otherwise, depends upon the same general principles-the different character, however, of its title greatly modifying the application of the rule. The heir, as such, has nothing to do with it. As distributee, or as being interested in the payment of debts, he may compel the executor or administrator to account necessary to prove the heirship. Morton v. Warring, 18 B. Mon. 82. No objection had been made to the form of the allegation before answering to the merits. 34 As to the necessity in equity pleadings of showing with certainty the plaintiff's right as well as his interest in the property, see Story, Eq. PL See, also, post, § 264. § 241, and instances given in section 245 et seq. for the personalty of the ancestor; but he derives no title by descent to specific property. Neither do the feudal terms "tenure" and "estate" apply to this interest; and it is sufficient, in describing the owner's title, to say that he was the owner of, or was in possession of, or that he was in possession as owner, or as bailee, etc.; and, perhaps, as at common law, a general allegation of property would be sustained, although the evidence should show only a special property.35 In a common-law action for an injury to chattels, title is shown by following a description of the property with the words "of the plaintiff," whether the injury be direct or consequential, except in trover, where there should be an allegation that the plaintiff "was lawfully possessed, as of his own property, of," etc., to be followed by the fictitious statement of the loss and finding.38 The difference in the phraseology arises from the fact that, in order to maintain trover, property in the chattel is necessary, either general or special,37 while, in other actions, actual possession is sufficient, or constructive possession with a general or special property; 38 the words "of the said plaintiff" cover any interest that enables him to maintain the action.39 35 Heine v. Anderson, 2 Duer, 318. In an action for the conversion of personal property it is sufficient for the plaintiff to say that he is the owner. Malcom v. O'Reilly, 89 N. Y. 157. 36 2 Chit. Pl. (Ed. 1867) 835. 371 Chit. Pl. (Ed. 1867) 148. 381 Chit. Pl. (Ed. 1867) 168. 39 In an action by an assignee in bankruptcy to recover the assets, the allegation that he owns the property is a sufficient statement of title. Dambmann v. White, 48 Cal. 439. The terms "trespass," "case," "trover," etc., do not apply to the form of the present action, although they are still used to indicate the nature of the injury; nor does the idea always correspond to the forms of the old actions. A trespass is still held to be an injury to the possession-immediate and with force; while we now understand by the word "trover" a conversion of property supposed to have come rightfully into the possession of him who wrongfully converts it to his own use. A conversion by a wrongful taking is a trespass, although at common law, the action of trover will lie. There is now no excuse for confounding the two terms; and when a petition shows a tortious taking the term "trover" should not be applied to the action. BLISS CODE PL. -23 (353) § 231. 3. Title to Choses in Action-Non-negotiable Instruments. At common law bills of exchange, payable to order, are so transferable by indorsement as to vest the legal title in the holder, and to these have been added, by statute, negotiable promissory notes.** In other contracts the legal title is in the person to whom the promise was made, and from whom the consideration passed. If it has been transferred to another, he is called the equitable owner, but cannot sue at law in his own name. The Code, however, has adopted the equity rule, and requires the action to be in the name of the real party in interest—that is, in the name of the equitable owner. Thus, all contracts are made transferable, and, in effect, so far negotiable as to enable the holder to sue in his own The petition should show his title to the instrument; that it has been sold and transferred to him, not by the commercial term "indorsed," for that is a technical word applying to another class of paper, but by any appropriate language showing the transfer.41 name. 40 3 Kent, Comm. 92. 41 [In an action upon a negotiable instrument, the petition should contain allegations of the following facts: [a. Title of Case. [b. Statement. [1. Its execution and delivery (set out copy). [2. Its maturity and nonpayment. [c. Prayer. [1. Add appropriate prayer. [d. Verification when required. [If the instrument has been indorsed, then the following allegations: [a. Title of Case. [b. Statement. [1. Its execution and delivery. [2. Its indorsement. [3. Demand, notice, protest, according to law. [4. Its maturity and nonpayment. [c. Prayer.] (354) § 232. Continued-Negotiable Paper-Striking out Indorsements. In actions upon negotiable bills and notes the code has made no change, for the legal as well as the equitable title passes to the indorsee. As between the maker and payee of a promissory note, and the acceptor and payee of a bill of exchange, the title of the payee appears from the relation of the parties, and none other should be alleged. But if suit be brought by the indorsee, he should show that it was payable to the order of the payee, also its indorsement; and, in general, in an action upon a note or bill by any one not an original party, his pleading must show the facts that give him title.42 Paper is sometimes made payable to, or is indorsed to, an agent of the true owner, when suit may be brought in the name of such agent, as is shown under the head of "Parties to Actions." When there have been several indorsements, and suit is brought by the last, or a late, indorsee against the original parties, or against one of the earlier indorsers, the intermediate indorsements between the plaintiff and the persons sought to be charged, except such as may be necessary to show his title, may be stricken out, and the instrument treated as though indorsed directly to the plaintiff, instead of mediately. His allegation of indorsement to himself is true, the defendant's liability follows the paper, and the latter cannot be injured by the fact that the plaintiff neglects to lay his title through all the intermediate indorsements. "When the title to a bill or note revests in a party by whom it has been indorsed, he may strike out his own and all subsequent indorsements, whether special or in blank, and either plead it or give it in evidence without a variance or departure from the allegations of a declaration on his original title." "Aliter when his original title is invalidated by a failure to give notice of non-acceptance, or otherwise, and he is forced + to rely upon one growing out of the retransfer to him." 43 42 Jaccard v. Anderson, 32 Mo. 188; Rousch v. Duff, 35 Mo. 312. 43 Hare & W., note to Bartlett v. Benson, 14 Mees. & W. 741, and quoting Dugan v. U. S., 3 Wheat. 183; U. S. v. Barker, 1 Paine, 156 [Fed. Cas. No. |