Huston v. Wickersham

The opinion of the Court was delivered by Huston, J. This, in the court below, was an action of trespass for mesne profits from a tract of land which William Wickersham, as trustee of Mary Chess, had recovered in ejectment in the same court. The statement of the case on our paper book is far from being a lucid exposition of what took place at the trial. The declaration originally contained two counts: to the last of which defendant pleaded liberum tenementum. This count, and of course this plea, was struck out; it does not appear nor was it clearly stated in argument, for what reason. The plaintiff gave in evidence the record of the recovery in an ejectment of June Term 1837; judgment on verdict for plaintiff, and possession delivered of November Term 1839. The errors assigned are to the first three bills of exceptions to testimony, and all depend on the same point: whether plaintiff in this action can give in evidence every trespass done to the land, and every profit he made from it. I shall not stop to inquire whether, if Huston [312] had been a tenant, the taking coal from an open bank, or the opening a new bank, and taking and selling coal from it, would or would not have amounted to waste or trespass; nor how this would have been if he had been tenant for life; because, after trial of the ejectment he must be considered in this cause as a trespasser who had tortiously entered upon the land of the plaintiff. It would be an affectation of learning to state at length that in ejectment, at first, only damages were recovered — then the possession. That to clear the ejectment from the perplexity of special pleadings, and to give to plaintiff the possession, which could not have been in simple trespass, certain forms, entirely fictitious, were introduced; a lease was stated to have been made, and a tenant to have entered, and a wrong-doer to have entered on him and forcibly to have dispossessed him; and this fictitious wrongdoer being sued, gave notice to the person in actual possession to appear and defend him. That on the tenant in actual possession appearing in court, he was permitted to manage the defence, on his agreeing to confess that a lease had been made and possession taken, and the tenant had been forcibly ousted; and on his doing this, and pleading not guilty, the party claiming, and the party actually in possession, were to go to trial on the merits; but as all this was on a fiction of a lease for years, the merits were, who had the right to possession; what is tried and decided in one cause, cannot be controverted in another action. The defendant then could never controvert that he had tortiously entered on a man in possession, and ousted him and kept him out. He was, however, only concluded as to the lease stated, and the trespass on the tenant for years, or his lessor, who was generally at the trial, substituted as plaintiff. The right of possession might again be controverted on another lease, stating another date, &c., &c. When this fictitious action was in use, only nominal damages were recovered in the action of ejectment, and this might be followed by an action of trespass for the injury to and profits of the land, while it was held by the defendant in the ejectment. I shall not enter into the question, whether with or without giving notice a plaintiff could recover full damages in the action of ejectment, because the old form is abolished in this state. I may say, however, that some very eminent lawyers and judges did not accede to Judge Washington’s opinion, because the confession of lease entry and ouster being a fiction contrived by the court, and compulsory on defendant, intended to get at the right to possession, excluding formal pleadings, could not justly be held obligatory on the defendant for any other purpose than to try the right of possession, and because the docket entries and court rules showing that this right alone was to be tried, no other question could be raised before the jury. The alteration of the forms and process in the action of eject [313] ment, excited no little alarm with those who could see nothing as right but English forms; since in that country they have now modelled their forms of pleading and practice, we may try to reconcile ourselves to our legislative changes. The question, how the damages were to be recovered, occurred soon after the passage of the Acts of 1806-7. In Osbourn v. Osbourn, (11 Serg. & Rawle 55, 56, 57), some points were settled: first, that trespass for mesne profits was the proper action under our form of ejectment; but leaving it uncertain whether, when defendant w'ent into possession under a contract with plaintiff, some other form of action might not be adopted. And, secondly, that form only is changed; the effect of the trial, verdict, and judgment, is the same as before, save that two verdicts and judgments are conclusive; and, as before thd judgment in ejectment was conclusive in trespass for mesne profits for all the time laid in the narr., so under our Act it is conclusive from the time of issuing the writ. But if he goes for mesne profits anterior to his writ of ejectment, he must prove defendant to have been in possession, and opens the question of title as to such anterior time, just as it was before, if plaintiff went for damages anterior to the date of his demise in his declaration. That the' judgment in ejectment is conclusive from the commencement of that suit, was again decided, Lloyd v. Nourse, (2 Rawle 49). It would seem by the first bill of exceptions that the court permitted evidence of defendant taking the profits before the commencement of the ejectment, though the exception is not to that, but to the time stated in the narr. in trespass; and it would appear that the question as to the conclusiveness from the commencement to the end of the ejectment, was not made below, but all was put on the date of the trespass in the narr.; but of this I cannot be certain. The defendant attempted to go into the title, it would seem, for the whole time; this the court rejected; and this forms the ground of the remaining bills of exceptions. Now, from what has been said, if the plaintiff had confined his testimony to the period between the commencement of his ejectment and the execution of his habere facias possessionem, this would have been all right; but if the plaintiff had given evidence of acts by defendant anterior to the writ of ejectment, this opened to defendant the right, as to those acts, to go into the title. As to the time laid in the narr. in this suit, I pass it over, because it seems from what the judge says, and the counsel of plaintiff say, there was an offer to amend as to date, and this was not done because defendant said it was not necessary. As the cause goes back, if plaintiff chooses to go for profits and damages anterior to his ejectment, he will alter the date of the commencement of trespass. If he confines his testimony to the time of the pendency of the ejectment, this will not be necessary, and defendant can show no title for that period, [314] ■ That more than the bare rent or yearly value of the premises may be recovered in this action, is well settled. See Goodtitle v. Tombs, (3 Wils. 118, 121); 3 Yeates 13. The Statute of Limitations may be pleaded to all beyond six years. 3 Yeates 13. It has been decided that in this action, in a case of an innocent holder of the land, he may be allowed for repairs. 2 Wash. 66, 155; 2 Johns. Cas. 438; 4 Cowen 168. It would seem to follow from this, as well as from principles of justice, that a defendant would be answerable for all actual damage and injury to the premises, as well as all actual profits. Judgment reversed, and a venire de novo awarded.