Dooley v. Gibson

The opinion of the court was delivered by White, J. This is a possessory action. The record is very imperfect, not only because the case seems to have been not over well made out below, but also because some of the documentary evidence offered is not in the transcript. However, as the omitted documents were apparently offered by the appellants, and our conclusion does not in any way depend upon the proof which could result from them, we will not ex mero mota dismiss the appeal,, which has not been formally asked by the appellees. We think the judgment below erroneous, because the plaintiff in her own testimony admits that after the possession of defendant she occupied the property by defendant’s consent, as an occupant or tenant at will, thereby cutting herself off from the possessory, whatever may be her rights to a petitory action. Whatever may have been the nature of her possession previous to her moving into the property with the consent of the defendant, the recognition which the asking for the consent and the action under it imported was obviousiy an interruption of her possession. During her possession under the consent of defendant she cannot be considered as holding as owner. G. E. 49 et seg. Possession nomine proprio is of the essence of the possessory action. Benton vs. Roberts, 2 A. 749 ; Anderson vs. Smith, 4 A. 525. Judgment reversed, and plaintiffs’ demand rejected with costs in both courts.