Carman v. Beam

Mr. Justice Sterrett delivered the opinion of the court, February 3d 1879. The issue, first formed by the pleading, was solely as to the right of the plaintiff below to the possession of the premises described in the writ. Before the trial he obtained possession by virtue of the deed from Pearson, to whom the defendant had conveyed after suit was brought. He then gave notice “ that on the trial a claim would be made for mesne profits, and also for the amount of $2500, secured by the defendant by virtue of a mortgage on the premises, while he wras the mere custodian of the title.” However it may be elsewhere, in this state it has been decided that in our statutory action of ejectment, mesne profits may be recovered by giving notice of the claim when suit is brought, or after-wards, within a reasonable time before trial: Dawson v. McGill, 4 Whart. 230; Cook v. Nicholas, 2 W. & S. 27. Notwithstanding the plaintiff had acquired the legal title and was in actual possession of the premises before trial, he had the right to claim mesne profits for the previous unlawful detention of the possession; but to justify a recovery, it was necessary for him to establish his right to the possession at the time' suit was brought in 1873, as fully as if he were prosecuting his action of ejectment for the sole purpose of obtaining possession. Accordingly, he undertook to do this by giving in evidence the original contract with Carman and the subsequent agreement and transactions by which it was modified. The main question of fact raised by the testimony was whether a sufficient amount of work had been done under the contact to entitle Beam to .the deed which had been left in escrow with Yardley. The right of the plaintiff to recover hinged upon this question. The learned judge, after calling attention to the original and subsequent agreements and the testimony as to what had taken place between [323] the parties, instructed the jury, in substance, that the first question of fact for their consideration, and the turning point of the case, was whether the necessary amount of work had boon done by Beam under the contract. The view taken by the court of the contract and subsequent agreement of the parties was substantially correct. The questions raised by the testimony wore fairly submitted to the jury with full and appropriate instructions; and the verdict established the fact that the necessary amount of work had been done as claimed by the plaintiff; that he was entitled to the deed, and consequently to the possession of the premises in controversy. We discover no error in the rulings of the court, touching the right of the plaintiff to recover mesne profits. We think, however, there was error in the instructions as to the measure of damages, especially in regard to the $2500 mortgage. The plaintiff, after bringing suit, accepted the conveyance from Pearson, expressly subject to both mortgages, amounting to $6000. In addition to this he agreed to pay one-half the delinquent taxes and three months’ interest on the mortgages, $269.79. This was a voluntary act on his part, and he had no right, in the present form of action, to call upon Carman to make good the difference between $4000 and the amount of the encumbrances subject to which he took the legal title. It would be introducing an entirely new element of damages in an action or claim for mesne profits to permit a recovery of any part of the mortgage in question. There is nothing in the circumstances of the case to justify a departure from the general rule which sanctions a recovery for the rent or fair annual value of the premises, and for injury, if any, done thereto. A claim for mesne profits, in an action of ejectment, is governed by the same general rules that are applicable to ordinary actions of trespass. When a plaintiff has recovered his possession, by ejectment or otherwise, that possession by operation of law relates back to the time when he was excluded, and hence all acts done on the premises, by those who have kept him out, are to be regarded as ordinary intrusions on his possession. There is nothing in any of the assignments of error that appears to require further notice. Judgment reversed, and a venire de novo awarded.