Doe ex dem. Cunningham v. Roe

By the Court. Lumpkin J. delivering the opinion. This writ is in the usual form of an action of ejectment, claiming mesne profits. There were three co-defendants; it turned out upon the trial from an examination of the plaintiff’s own witnesses, that their possession was not joint; but that they claimed under different titles, and had taken ' possession of the land at different times. The defendants moved a nonsuit on that account; that is, the misjoinder of the defendants, which the Court sustained. The plaintiff proposed striking out two of the three defendants out of the writ, and proceeding against the third; which the Court would not allow. The plaintiff then asked to re-open the case, aiid show [240] that the defendants were joint tenants; and this the Court refused to permit. Without pronouncing any judgmentupon the first and third grounds, we are clear, that the Court was wrong in refusing to permit the plaintiff to strike out two of the defendants and proceed against the third. We see no possible objection to that. Conceding that the defendants in ejectment claim different parcels of land under distinct titles, we see no insuperable difficulty in allowing a joint action to be maintained against them; so far as recovery of the possession is concerned. True, it would complicate the defence of each tenant with that of his co-tenants. And it might become necessary to render separate verdicts against each, for the land held by him. In New York, this is done daily; and it would certainly save a multiplicity of suits. This question underwent some examination in the case of McGuire’s children, 17 Ga. Rep. 303. We there held, and no doubt properly, there could not be a joint recovery, for mesne profits, against defendants, who held severally and not jointly. But as mesne profits cannot be recovered in this State in a separate action, in order to give force and effect to the statute, would it not be proper to hold, that the damages might be apportioned out against the several defendants, according to their respective possessions? One execution might be issued against all, the amount to be collected out of each being specified, or separate,/?, fas. against each. The cost might create some trouble. Although, as we have said, it would make the defence a little more complex; yet in the end, it would save time and expense. And it would be productive of this additional advantage, that all the defendants would have an opportunity of combining to resist the plaintiff's title. For that would be common to all. See 1 Chitt. Pl. 86, and notes; 5 Johns. Rep. 278; Serg. & Raule 435; 7 Wendell, 182; 5 Vermont, 251. Judgment reversed.