Lamson, Cutting & Buffum v. Sutherland

The opinion of the court was delivered by Williams,Ch. J. This cause comes before us on two exceptions ; one taken by the plaintiffs, and the other by the defendants. It appears that the plaintiffs held two mortgages against the defendant, Sutherland, on one of which the condition was broken, and the plaintiffs had a right of entry on the land. On the other, the condition was not broken, and by our statute, the defendant, Sutherland, was entitled to the possession until it was broken. The plaintiffs having recovered on the title derived from their first mortgage, the question was, whether, on the defendants’ motion to redeem, the court, in ascertaining the sum due in equity, were to compute the sum on the first mortgage, only, or the sum due on both, the whole amount embraced in the condition of both mortgages being due and payable at the time judgment was rendered in the action, and when the motion to redeem was filed. The county court computed the sum due on a first, mortgage, only, and permitted a redemption on payment of the sum due on that, without regarding the other, and we think they were correct in adopting that course. It was the first mortgage, only, by virtue of which the plaintiffs could recover, and this having been shown to the court, on the motion to redeem, the court were limited to ascertain the sum due the plaintiffs, in equity, thereon, that is, the sum due on the mortgage which gave the plaintiffs the action of ejectment, and enabled them to recover against the defendants. It differs from a mortgage payable by instalments, some of which were not due. On the second question,arising upon the exceptions taken by the defendants, it is only necessary to say that it appears that both the defendants were in possession of the land sued for, at the time of the commencement of the suit. It appears, from examining the records, that judgment was rendered against both the defendants, and they reviewed the cause," [315] and did not suffer a final judgment to be taken against both, or either, until the term, when the damages were avoid joining both in assessed. The plaintiffs could not their writ, and it does not appear that they had any knowledge of their relative situation to each other, or that either had abandoned the possession or disclaimed title to the premises sued for. This was first disclosed on the hearing for the assesment of damages, after the judgment, rendered by nil dicit, which was after the delay occasioned by the ' injunction. Under these circumstances, we think the county court correctly assessed all the damages which the plaintiffs sustained by being kept out of possession, against the the defendants, jointly, and, as the mesne profits are to be recovered in the action of ejectment, and not in a separate suit, both the defendants were liable therefor to the plaintiffs. The court are not prepared to say whether a different rule of assessing damages, could or could not have been adopted, if the defendant, Morgan, had suffered a judgment by default, or disclaimed title immediately after he abandoned the possession ; or whether, in a joint action of ejectment, separate damages may be recovered of several defendants, or whether joint damages for a part of tire time may be assessed against all, during the time of their joint occupation, and several damages after the joint occupation ceased, in any conceivable case. It is sufficient to say, there is nothing in the present case to induce the court to depart from the usual rule in actions of ejectment, and make all the joint trespassers liable for the whole amount of the injury the plaintiffs may have sustained, by their tortious entry and ouster. The judgment of the county court is, therefore, affirmed.