Lockwood v. Drake

By the Court, Wing J. The 4th sec. of chap. 2, title 3, part 3, of the Revised Statutes of-1838, expressly provides that the action shall be brought against the-actual occupant, if the premises for which the action is brought are ae7-tually occupied by any one; and in such case the 13th section requires service of a copy of the declaration to be made on such occupant. If not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title' thereto, or some interest therein, at the commencement of the suit. The proof shows without a shade .of controversy, that defendant’s brother was in the actual occupation of the premises claimed at the time of the commencement of the action; that he had so occupied them from May, 1843, and had controlled them as his own. It is in p>roofj. that in the fall of 1843 defendant said he owned the property; and it was proved by other witnesses, that at" the time of the commencement" of the suit, the defendant claimed to own the property; but there was7 no evidence to show that defendant was in the actual possession.. [16] There appears not to have been the slightest ground for the verdict of the jury under the charge of the court, (which was undoubtedly correct) and the proof. It was clearly contrary to evidence, and therefore ought to be set aside. Suppose judgment was rendered upon this verdict, could the sheriff deliver possession to the widow ? He could not disturb the occupant in his possession, nor deprive him of whatever rights he might have. He may be the owner, as it is said he controlled the land as his own. The occupant is' prima facie the owner, and until he is made a party he cannot be ejected by a judgment against a person out of possession, claiming title, though no title in him is shown. It does not appear from the testimony who is the legal owner of the premises. The law would have been satisfied if suit had been brought against the occupant, and it dees not authorize a suit against any one else, so long as there is an occupant. It says such actual occupant shall be named defendant in the declaration. On this ground we think the verdict should be set aside. As to the first reason alleged for setting aside the verdict, we are of opinion that the description of the land, as set forth in the verdict^, is sufficiently definite, and that it would have been sufficient if so stated in a declaration. The numbers of the lots are given. This complies with the first requisite of the statute. In reference to the lands ex-cepted out of the last two lots, it does not appear they were or had been occupied, or that there were any natural boundaries. The metes and bounds are given, which furnish as accurate a designation as perhaps could be given without inserting a long description, which probably would not enable a surveyor to find the lines any more readily than he could from the description given; 11 id cerium est quod potest cerium fieri.” As to the third point: The principles established in the case of Lamberton v. Foote, 1 Doug. Mich. R. 102, would appeal to be aj>plicable to this case. The verdict is intelligible, and no doubt can arise as-to what was the intention of the jury. Certified accordingly„