Baldwin, J. delivered the opinion of the Field, C. J. concurring. The decree is affirmed. Although an equitable defense may be set up to an action of ejectment, as is the settled law. in this Court, yet all the elements going to constitute such a defense as against the legal title should be distinctly set up and proved. We see nothing in the findings, to which we are restricted by the manner in which this defense is presented, to show such notice of the claim of the appellant Parsons, either by possession or otherwise, as would entitle us to pronounce in its favor.
Such facts should have been distinctly found by the findings, as to show the defendant’s equity as against the plaintiff’s claim. This does not seem to be the case, and we must therefore affirm the judgment.