Whissenhunt v. . Jones

Bynum, J. 1. Both the plaintiff and defendants claimed •title under one Yount. In such case the rule is settled in •this State, that it is not competent for either claimant to •deny that such ■ person had the title; and though the defendants may show that they have in themselves a better title than the plaintiff, they cannot set up a title in a third person. Love v. Gates, 4 Dev. & Bat. 363. The plaintiff here had the elder and superior title and was therefore entitled to recover, unless he was prevented by the next ex. ■■ception. 2. But it was next objected that the plaintiff cannot re *363 cover, because no notice to leave had been served upon the ■original defendants, Watson and Chester, who went into possession under the plaintiff, as his tenants from year to year. The answer is, that the defendant, Yount, was allowed to come in and defend the action as landlord, and in such case it is settled that no notice before beginning the action is necessary. The application of Jones to defend in place of the tenants, presupposes that the tenants are the tenants of Jones; so that although they entered at first as the tenants of Whissenhunt they must have subsequently attorned or turned over to Jones, and thereby disclaimed and disavowed their tenancy to Whissenhunt, and thus put themselves in-the wrong which dispensed with notice. Foust v. Trice, 8 Jones 490. 3. The last exception is that damages could only be given to the commencement of the action, and not to the time of trial. We think otherwise. The action is for the recovery ■of the possession of the land, and for damages for the time the defendants have wrongfully kept the plaintiff out of possession. Had this been the old action of ejectment, it has been decided that in that action which was originally and properly an action for damages only, the actual damages could be assessed for the trespass. When afterwards the action of ejectment was divided into two actions, one ito try the title and the other to recover the mesne profits .after the possession had been recovered, it - was still competent in the latter action, to recover damages for the entire time the premises were occupied by the defendants. Miller v. Melchor, 13 Ire. 439. The only difference between the action of trespass for the mesne profits under the old system, and the present action under the Code, is that in the former, the w-rit did not lie until the possession had been actually recovered in the action of *364 ejectment, while in the latter case the action is for both the-possession and the damages for the use and occupation at-the same time. But they are both alike in this, that by either, damages are recovered for the time the. plaintiff was kept out of possession by the defendants. The purpose of the Code in actions of this nature, as it is in all others, isy that a complete determination shall be made of all matters in controversy growing out of the same subject of the action. Evidently this action would fall short of that consummation, if the plaintiff could recover damages only up to the commencement of the action, and should be put to-another action to recover the damages sustained subsequently, but before the time of the trial. That the damages up-to the time of trial are recoverable in this action, is further apparent from the provisions of the Code, §§ 217, 261 (4) 262 (a.) (e.); Taylor’s Landlord and Tenant, §§ 710-11-12. We are therefore of opinion that the mesne profits, by way of damages were properly assessed up to the time of trial. Jones v. Carter, 73 N. C. 148. It appears in t}ie case that the-plaintiff under some misapprehension of his rights, directed the rents for the year 1869, to be paid by his tenants to-their co-defendant, Jones. His Honor held that having thus, assigned them, the plaintiff cannot recover the damages for -the rents of that year. In that there is no error. It was-also agreed by tbe,parties that the defendant, Jones, in case ofrec overy by the plaintiff, should retain the rents of 1877, paying therefor .the assessed damage of $33.38 1-3, and judgment was rendered in the Court below for the damages assessed for the time of the occupation of the defendants except the first year as before explained. As the rents were paid by the tenants to their landlord, Jones, he, as between the defendants, is primarily liable for the amount of the judgment. The judgment of the Superior Court is affirmedy with this modification, that no execution shall issue against. *365 Ibis co-defendants, if satisfaction of the execution against -Jones and his sureties can be had. There is no error. Pee Curiam. . Judgment affirmed.