Emrich v. Ireland

Simrall, C. J., delivered the opinion of the court. In the case of Davis v. Doe ex dem. Delpit, 25 Miss. 446, in an opinion delivered on a second argument, the court, after a careful study of the authorities, declared “ that ever since the action of ejectment was adopted as a mode of trying title-to real estate, it has been well settled as a rule of the common law that the jury, in the assessment of damages, are confined to a compensation for the injury sustained bjr the ejectment; which being fictitious, the damage can only be nominal.” Originally, the action was a remedy for a tenant who had been ejected, and he recovered his term and damages for the time he had been kept out of the possession, which included, of course, the profits of the land. But when the action lost its primary charactei'istic, and was adopted merely to try the title, that which originally■ was a reality — the lease, entry, and ouster— vyas retained, as mere fictions; and compensation for profits was recovered in a subsequent action. . . . A recurrence to the common law is only valuable as it may throw light on our statute regulating the action of ejectment. Section 1557 of the Code of 1871 makes it optional for the plaintiff to “declare for and recover mesne profits” in the action of ejectment, or he may pretermit the claim in that suit, ‘ * and have his recovery for the mesne profits after recovery in ejectment, as heretofore.” Plainly, the statute intends that the plaintiff must make a specific claim for mesne profits in his suit to recover the land, or he will not be barred of his subsequent action. That is implied in the words ‘ ‘ declare for ’ ” — that is, distinctly set forth-his demand as a cause of action. This is clearly indicated by the formula of pleading in section 1547. If the declaration be merely for recovery of possession of the land, the conclusion is, “ and that the defendant wrongfully deprives him of the [400] possession thereof, to his damage one hundred dollars.” If mesne profits are demanded, the direction is to add to the ‘ above form the following: And the said plaintiff also demands of the defendant the sum of-dollars, for the use and occupation of the land by the defendant from the aforesaid day (that is, the day of the accrual of his right) to the commencement of this suit, being at the rate of-dollars per year.” The record of the ejectment suit between Ireland, the de- , fendant in error, aud Emrich, the plaintiff in error, shows that the cause of action was limited to a recovery of the land, and no claim was made for mesne profits. The judgment in that suit cannot be set up as “ res adjudícala ” of the subject-matters in issue in this suit. The wrongs and injury complained of in this action were not embraced in that. The ejectment suit involved no more than the right of possession of the land, and nominal damages for the detention. The common law did not permit a recovery in’the action for • mesne profits of damages for waste, unless clearly counted for and demanded in the declaration. It admits of grave doubt whether a claim for such injury is not excluded in the statutory action. The form of declaration where the mesne profits are included in the ejectment'is, “for the use and occupation at -- dollars per year.” But that question is not involved in this suit, and we reserve our opinion. In Wisconsin a statute contained the same elements as ours. In Pacquette v. Pickness, 19 Wis. 240, it was held that, where mesne profits were demanded in the ejectment, nothing more could be recovered than the value of the use and occupation of the premises, and that for injuries to the freehold a separate action could be maintained. The general rule is that only the party in possession can bring the action of trespass quare clausum fregit. But it was also a rule of the common law that the disseizee, after he had regained possession, could maintain the action against the disseizor for acts intermediate the disseizin and reentry; for as [401] to these, after reentry the law supposes the freehold to have continued in the disseizee. In Lefford’s Case, 11. Rep. 51, this illustration is given: “If one disseizes me, and during the disseizin cuts down trees, etc., and afterwards I reenter, I shall have an action of trespass vi et armis; for, after my regress, the law supposes the freehold always continued in me.” Nor does it matter whether the reentry was by recovery in ejectment, or without the aid of the law. Durrey v. Osborn, 4 Conn. 338; 3 Bla. Com. 210; Leland v. Toncey, 1 Hill. 330. The wrongs complained;of in this suit are : tearing down and removing a house from the premises, and a fence which inclosed it in part. These acts were injurious to the freehold, for which the owner in fee could be compensated in an appropriate action, though a term for years, or a particular estate, might have been outstanding in a tenant. To recur very briefly to the prominent facts: The proof was full that the plaintiff was owner of the property, and that the house and fencing were removed in March (about the 16th), 1876, and were used on the defendant’s land. The ejectment suit was brought February 28, 1876, on which day the writ was served. At the ensuing March term, Emrich, the defendant, appeared, disclaimed interest in himself, admitted title in Ireland, the plaintiff, and denied possession. In his testimony the defendant admitted that Drayton M. Davis, who conveyed to him by quitclaim deed, had no title, because of a misdescription of the land in the tax-collector’s deed to him. It was also proved that Davis (after Ireland removed from the land in 1864) assumed to act as Ms agent in collecting rents, etc., none of which he has paid over. The jury were warranted in inferring that the defendant knew that he had acquired no title by the deed from Davis, and that for that reason he abandoned possession after he was sued in .ejectment. And with that knowledge he committed the spoliations complained of. We are satisfied that the judgment in the ejectmént suit [402] between these parties cannot be interposed as “ res adjudicata” of the matters embraced in this suit; and that the defendant is liable in this action in damages for the waste which he committed, or w'hich was done with his sanction and approval. A question is made in this court, as it was in the Circuit Court, that the testimony is insufficient to charge the defendant for the acts of his son (who actually removed the house and fencing). The Circuit Court, in substance, charged the jury, for the defendant, that he was not responsible unless he sanctioned or .approved or ratified the acts of the son done for his benefit. The testimony was that the son hauled the materials of the house, and the rails, with his father’s team (of whose family he was a member at the time), and that the lumber and logs of the house were used in the construction of another house, on the defendant’s land — the rails built into the defendant’s fence. It was also proved that the defendant generally acted as agent for his father. From such testimony the jury did believe, as declared by their finding, that the defendant approved and ratified the conduct of his son. But it is contended that the removal of the rails stands upon a different ground — that the defendant had a right to remove them, because he put them on the premises. It is quite well settled in the modern cases that fencing is a fixture, and part of the freehold. 2 Kent’s Com. 346; Mitchell v. Billingsly, 17 Ala. 393; Walker v. Sherman, 20 Wend. 636. The very question was made in Wentz v. Fincher, 12 Ired. 298. There the fence was built by the plaintiff, on the defendant’s land, without his consent. “ By the act of building,” said the court, “ it became part of the freehold, upon the common-law maxim, cujus est solum, ejus est usque ad caelum.” Murchison v. White, 8 Ired. 52; Shubschaum v. McHenry, 29 Wis. 655. • There is no error in the charges tó the jury given for the ■plaintiff. The defendant cannot assume the merit of being a purchaser in good faith. He did not entertain the honest belief [403] that he was the true owner. Cole v. Johnson, 53 Miss. 100. The refusal to give the defendant's fourth request -was proper, and in consonance with the views hereinbefore expressed. The finding of the jury is sustained by the testimony. Judgment affirmed.