Dewey v. Osborn

Curia, per Sutherland, J. The defendant acted as the servant, and under the direction of Barker, in'removing the buildings, which constitutes the trespass complained of. It was committed after verdict and before judgment m the ejectment suit; and the action was not brought, till after the writ of possession was executed. The first question which arises is, whether a lessor in ejectment, after he has recovered and been put into posses [338] sion call maintain an action of trespass against the defen or his servants, for an injury done to the freehold, at this stage of the ejectment suit, and. while the defendant continues in possession. The general proposition, that trespass quare clausum f re git can he sustained only by the person who had the actual possession when the injury was committed, cannot be ques tioned. But it is also true, that, in case of disseisin, the disseisee, after he has regained possession by re-entry, may maintain trespass against the disseisor, and his servants, for acts intermediate the disseisin and re-entry; for as to them the law, after the re-entry, suppose the freehold to have continued in the disseisee. The proposition is thus laid down and illustrated in Lifford’s case, (11 Rep. 51,) “ If one disseises me, and, during the disseisin, he cuts down the trees or grass, or the corn growing upon the land, and afterwards Ire-enter, I shall have an action of trespass against him vi et armis, for the trees, grass, corn, &c.; for, after my regress, the law, as to the disseisor and his servants, supposes the freehold always continued in me.” And see Moore v. Hussey, Hob. 98. 20 Vin. Abr. Trespass, (T) pl. 5, p. 465. 3 Bl. Com. 210. 1 Chit. Pl. 177. Holcomb v. Rawlyns, Cro. Eliz. 540. In the last case it was held that after re-entry, the disseisee could maintain trespass, not only against the disseisor, but against his grantee. _ The only difficulty upon the point is whether the remedy shall extend to a stranger who comes in by title under, the disseisor, or be confined to the disseisor and his servants. That the remedy lies against the latter is unquestionably now the settled law, though otherwise, it seems, as to strangers. (Case v. De Goes et al. 3 Caines’ Rep. 261,263. Wickham v. Freeman, 12 John. Rep. 184.) The contrary position in 6 Bac. Abr. Trespass, (c) pl. 3, p. 566, that the disseisee of land cannot maintain an action. of trespass quare clausum fregit, for an injury done thereto, betwixt the time of the disseisin, and his re-entry,” if it be intended of the disseisor as well as strangers, clearly is not law. The action for the mesne profits is an action of trespass; and is founded on the principle of possession by elation of the re-entry. The damages in that action are [339] not limited to the rent. Extra damages may be given. (Runn. on Ej. 439, and the cases there cited.) Whether the plaintiff’s remedy for the mesne profits is affected by the bringing of this action, is not now a subject of inquiry. I think this action may be maintained. The record of the recovery in ejectment was competent evidence against the defendant in this suit. He was the servant of the defendant in the ejectment; and acted by his orders. A judgment is evidence, not only against the party; but also against those claiming or acting under him. (Peak. Ev. 38. 1 Phil. Ev. 222-3.) The evidence of the elder Barker’s title was properly rejected. The defendant being the servant of Barker, the defendant in the ejectment, whatever concludes him is conclusive against the present defendant. Now the recovery in ejectment, as between the lessor and the defendant in that suit, was undoubtedly conclusive evidence of the lessor’s title, from the time of the demise laid in the declaration. (Runn. on Ej. 441. Aslin v. Parkin, 2 Burr. 667, 668.) ' I am inclined to think that the evidence of adverse possession in James Barker-, senior, should also have been excluded ; but as nothing like an adverse possession was .made out, whether it was or was not properly admitted is immaterial. There is nothing in the case to show that the plaintiff was a mere tenant in common, and recovered in the ejectment suit in that character. There was a demise from Goodwin as well as the plaintiff; but this does not appear to have been joint; and the case states that the possession was delivered to Dewey. I think we are to intend that the recovery was on his demise; and he was, therefore, entitled to recover the whole damages. Motion denied.