Tongue v. Nutwell

Bartol, C. J., delivered the opinion of the Court. This is an action for mesne profits, instituted by the appellant, on the 17th day of October, 1863, alleging the trespass to have been committed on the 1st of May, 1854, and continued till the 15th of May, 1863. ' The appellee, defendant below, pleaded seven pleas, substantially as follows: 1st and 2d. Not guilty. ' 3d. Not guilty at any time within three years before the commencement of this suit. 4th and 5th. That the alleged cause of action did not accrue within three years before the commencement of this suit. 6th. To this plea there was a demurrer, which was ruled good, and no question is made thereon by the appellant. 7th. That the plaintiff hath not recovered the land mentioned in her declaration in ejectment. Upon these pleas issue was joined. At the trial, five bills of exceptions were reserved by the appellant, which wall be disposed of in the order «in which they appear in the record. First Exception: The plaintiff claimed mesne profits from the 1st - day of May, 1854, the date of the demise. The Court, on the objection of the defendant, excluded all evidence of the value of rents and profits, for any period prior to the term of three years before the institution of the suit; The question presented by this exception has not been decided by the Court of Appeals. It arose in Mitchell vs. Mitchell, 10 Md., 234, and was elaborately argued; but the — 313 — Court, then consisting of four judges, being equally divided in opinion, no decision was pronounced. It has been very ably argued; and we have given to it our best consideration, and will now, as briefly as we can, express our opinion upon it. Our Statutes of Limitations are found in the Code, Art. 57. The first section enacts that “ all actions for trespass for injuries to real or personal property shall he commenced or sued within three years from the time the cause of action accrues.” This is an action of trespass, q. c. f.; the cause of action alleged in the declaration is the forcible breaking and entering into the plaintiff’s land, expelling and removing her from the possession, and taking the rents and profits thereof. It is the usual form of action for the recovery of mesne profits, which is the .object of the present suit. The counsel for the appellant have argued that the case does not fall within the section of the Code, because actions of trespass, q. c. f., eo nomine, are not therein mentioned, as they were in the original Act of 1715, ch. 23, sec. 2; and because this suit is not instituted to recover damages for injury to the land. To this view, we cannot give our assent; if it were correct, then would suits of this kind be wi thout any limitation whatever. In our opinion, this section, in describing the several forms of action intended to be embraced, is a substantial codification of the 2d section of the Act of 1715, and to be construed in the same way. The words “ actions for trespass for injuries to real property ” do not mean merely such actions as are instituted for the purpose of recovering damages for injuries to the land, but must be understood as embracing all actions for trespass for injury to the plaintiff’s rights of property in the land. This is strictly an action of trespass, for injuries to real property, as are all actions of trespass, q. c. f., and as much within the operation of the Code as if it — 314 — had been mentioned by its technical denomination as trespass quare clausum fregit. Every unlawful entry by force into the lands of another is a trespass, and in contemplation of law, an injury to the land; such a trespass is al- ■ leged in the declaration,' and is the groundwork of the present suit. It falls, therefore, as we have said, within the- operation of the Code, and “ must be commenced within three years from the time the cause of action accrues.” What is the effect of this law upon the rights of the plaintiff? Does if,'when pleaded, limit her recovery of mesne profits within the three years before the institution of the suit ? Our examination of the authorities on the subject has .satisfied us that such is the effect of the Statute, and consequently that the ruling by the Circuit Court, in the first bill of exceptions, was correct. A point has been made by the appellant’s counsel, and an argument addressed to us upon the effect of the words, “ from the time the cause of action accrues.” This argument will be noticed hereafter; we refer to it now simply for the purpose of saying, that in this respect the English Statute of Limitations, 21 James, 1, ch. 16, and the Act of 1715, were both similar in their provisions to the Code. The words of.the former were “within six years next after the cause of such actions or suit, and not after.” The Act of 1715; said “ within three years -ensuing the cause of such action, and not after.” The construction which the English Statute has received may, therefore, safely be relied on as a guide in the construction of our own. By reference to the English authorities, it will be found that the uniform rule in actions of. this kind is to apply the Statute, and w'hen it is pleaded, to- limit the right of recovery to the six years next before suit brought. It is so stated in all the elementary books of acknowledged authority. Buller’s N. P., 88; Peake’s Evidence (Norris’,) — 315 — 539; 3 Bacon’s Ab., 302; 2 Saund. Pl. & Ev., 668; Runnington on Ejectment, 157; Adams on Ejectment, 333; Roscoe’s Law of Actions relating to Real Property, 29 L. Lib., 259; Browne on Actions at Law, 45 L. Lib., 341. As was said by Judge Fisher, in Hill vs. Meyers, 46 Penn., 22: “ So well understood in England was it, that in an action for mesne profits at law, the Statute applies, that in analogy to it the Court of Chancery adopted the limitation in many cases whore bills were filed, praying for an account of rents, issues, and profits,” and cites a number of cases in support of the position. The law in England, under the Statute of James, has long been well settled. In the United States, wherever Statutes of Limitation similar to ours have been in force, the Courts have uniformly held them to be applicable to cases like the present. The only exception is Murphy vs. Guion, 2 Murphy, 238, decided in North Carolina, and which was cited in argument in 10 Md., 237. It is unnecessary here to cite the numerous decisions in other States in support of this position. They have been referred to by the appellant’s counsel in argument, and are cited in their brief; many of them are to be found referred to in the report of the argument in Mitchell vs. Mitchell, 10 Md., 240-241. Although not distinctly decided, this rule seems to have been recognized in Maryland. In Horsey on Ejectment, 108, it is said, “ As to limitations as a bar to mesne profits, the defendant may plead it after three years.” In Dugan vs. Gittings, 3 Gill, 140, the Court recognized the plea of the Statute as a bar to the recovery of rents and profits in a suit at law, and by analogy, applicable also in Chancery in cases where no fiduciary relation exists between the parties. (See pages 161-162.) In Ridgely vs. Bond and wife, 18 Md., 434, which was a bill in equity to recover rents and profits, the plea of the Statute was allowed. — 316 — Looking at the whole current of decisions in England and in this country, the rule we have stated would seem to be too well established to be shaken. This rule has been assailed in argument on the ground, that as an action for mesne profits cannot be maintained before a recovery in ejectment, the Statute ought not to begin to run till then, and it is said to admit the plea of the Statute in ■such case would be manifestly unjust, and would leave the plaintiff without remedy for an admitted wrong. The answer to this argument is, that if the case falls within the words of the Statute, and is embraced in its operation, the Court cannot, by an equitable construction, save it from the bar which the Statute interposes. It is, no doubt, well settled that the Statute does not begin to run until the cause of action arises; but it cannot be said here that the cause of action did not exist until the recovery in ejectment. It is true the plaintiff could not institute this form of action, until her recovery in ejectment; this is upon technical grounds, possession being essential to support an action of trespass; but the cause of action here is the trespass; and for trespasses which, occurred more than three years before the institution of the suit, the plea of the Statute bars the recovery. On this subject, we refer to' the able and elaborate opinion of Judge Eishek, which was affirmed and adopted by the Supreme Court of Pennsylvania, in Hill vs. Meyers, 46 Penn., 15. The question before him was the same, and the same argument above stated was addressed to him. The rules laid down by him on pages 20, 21, as applicable to the forms of action as affected by the Statute of Limitations are clearly stated, and in our judgment, correct, and we concur in the conclusion stated by him, that “ the doctrine is too firmly established to be shaken,” that in cases of- trespass for mesne profits, the Statute, if pleaded, bars a recovery for all over three years before the bringing of the action. -' — 317 — Second Exception: We concur with the Circuit Court in its ruling upon this exception. The plaintiff is not entitled to claim any part of the money received by the defendant in 1864, under a policy of insurance upon the house situated on the land. That was received upon a private contract made by the defendant, to which the plaintiff was not a party. No offer was made to show that she was a party to the contract of insurance, or that it was effected for her benefit, or that she paid any part of the premium. The defendant as owner of one moiety, had an insurable interest in the property, and having caused it to he insured for himself, and in no sense as agent for the plaintiff, she could have no rights under the contract. The evidence was properly rejected. Garrell vs. Hanna, 5 H. & J., 412. Third Exception: The defendant offered to prove an expenditure made by him in 1860, for a permanent improvement on the land, which the plaintiff insisted ought hot to be allowed, unless there was first deducted therefrom the rents and profits which had accrued, and which she was excluded from recovering by the plea of limitations, she offering to prove such rents and profits. The Court ruled this point in favor of the defendant. This point arose in Mitchell vs. Mitchell, 10 Md., 234, but was not expressly decided, having been disposed of upon a defect in the form of the prayer.- We think, however, there is a strong intimation in the Court’s opinion in favor of the view taken by the present appellant. The rule is well settled that a defendant in an action of this kind, “ if he has, in good faith, made lasting improvements on the land, may be allowed the value of them against the rents and profits claimed by the plaintiff.” 2 Greenleaf on Ev., 337. Rut in a case where the plea of the Statute is interposed, which prevents the recovery by the plaintiff of rents and profits beyond the time of limitation, we think it is reasonable and just that the defendant should — 318 — be compelled to apply in reduction of bis claim for improvements, any profits which the plaintiff may prove to have been received by him at any time during his occupation. This rule has been sanctioned by the case of Hylton vs. Brown, 2 Wash. C. C. Rep., 165; Ewall vs. Gray, 6 Watts, 427, and by this Court in Ridgely vs. Bond and wife, 18 Md., 435. We therefore reverse upon the third exception. Fourth Exception: The evidence offered by the defendant and set out in this bill of exceptions was inadmissible for the purpose for which it was offered. It is settled by the cases of Green vs. Stone, 1 H. & J., 405, and West vs. Hughes, 1 H. & J., 574, that the measure of damages in this action is fixed, and that the only thing which this plaintiff can be entitled to recover, is one moiety of the value of rents and profits received by the defendant. And it appearing besides, from the bill of exceptions, that this plaintiff does not claim exemplary damages; the evidence offered was not pertinent to the issue, and inadmissible for the purpose of mitigating the damages. Its admission, therefore, was erroneous. The only purpose for which such evidence could be admitted, would be to show that the defendant entered bond fide as purchaser for value, as a ground upon which he would be entitled to be allowed for costs of improvements, if such allowance should be objected to by the plaintiff'. See Strike’s Case, 1 Bland, 77. Fifth Exception: Evidence was offered by the plaintiff, tending to prove the recovery by her in ejectment of one moiety of the land. Whéreupon the defendant prayed an instruction to the jury to the effect, that upon all the evidence the plaintiff and defendant were tenants in common of the land, and if the jury so believed, the plaintiff could not recover in this action. This instruction the Court gave. In our judgment, this was manifest error. Since the decision in Goodtitle vs. Tombs, 3 Wils., 118, the law — 319 — has been well settled that a tenant in common, after recovery in ejectment, may maintain an action of trespass for mesne profits against his co-tenant. (Decided 2d July, 1869.) We refer also to Hare vs. Furey, 3 Yeates, 13; Bennett vs. Bullock, 35 Penn., 364; Critchfield vs. Humbert, 39 Penn., 427. Many other cases might be cited to the same effect. But we regard the law as too well settled to be questioned. It has been contended on the part of the appellee, that notwithstanding there may be error in the rulings of the Court upon the exceptions, the judgment ought not to be reversed, because it appears from the record that the verdict of the jury was in favor of the defendant on the seventh plea, which alleged that the plaintiff had not recovered in ejectment, without which she cannot maintain the action. There is no doubt of the rule, that when it is manifest the appellant has not been injured by the ruling of the inferior Court, the judgment will not be reversed, although there may have been errors committed. But that rule is not applicable to the present case. It appears that when the -plaintiff had offered some evidence to prove the recovery in ejectment, by the production of the docket entries, verdict and judgment in ejectment, the defendant interposed with a prayer which assumed the identity of the land mentioned in the proof, with that described in the declaration, and assuming that the tenancy in common had been proved, asked the instruction which denied the right to recover, because the parties were tenants in common. The granting of this instruction was fatal to the plaintiff’s case, and being, in our judgment, erroneous, the plaintiff is entitled to have the cause tried again. We affirm on the first and second exceptions, and reverse on the third, fourth and fifth exceptions. Judgment reversed, and procedendo ordered.