Obrázky stránek
PDF
ePub

PARTIES TO ACTIONS.

97

cost shall be subject to the discretion of the court, and the trial shall then proceed against the party making the defense under the rules and practice of the court as the same existed prior to the year eighteen hundred and seventy, except so far as the same are changed by this article, and the plaintiff shall also recover as damages the mesne profits and damages sustained by him and caused by the ejectment and detention of the premises up to the time of the determination of the case.

Pub. & Gen. Laws Md. 1888, p. 1128; Mitchell v. Mitchell, 21 Md. 585; N. C. R. R. Co. v. Canton Co., 24 Md. 492; Tongue v. Nutwell, 31 Md. 302; Mears v. Remare, 33 Md. 251; Mackenzie v. Renshaw, 55 Md. 298; Hecht v. Colquhoun, 57 Md. 563; Johnson v. Hines, 61 Md. 132.

(7) MASSACHUSETTS.

SECTION 5. Who may be considered as disseizor. Every person who is in possession of the premises demanded in a writ of entry, claiming an estate of freehold therein, may be considered as a disseizor for the purpose of trying the right, whatever was the manner of his original entry on the premises.

G. S. Mass. 134, § 5; Swan v. Stephens, 99 Mass. 7 (1868); Crandell v. City of Taunton, 110 Mass. 419 (1872).

Sec. 6. Same subject. If the person in possession has actually ousted the demandant or withheld from him the possession of the premises, he may, at the election of the demandant, be considered as a disseizor for the purpose of trying the right, although he claims an estate less than a freehold.

G. S. Mass. 134, § 6; Favour v. Sargent, 6 Pick. 5 (1827); Allen v. Holton, 20 Pick. 458 (1838); Wheelwright v. Freeman, 12 Met. 154 (1846); Hill v. Andrews, 12 Cush. 185 (1853); Dewey v. Bulkley, 1 Gray, 416 (1854); Dolby v. Miller, 2 Gray, 135 (1854); Munroe v. Ward, 4 Allen 150 (1862); Clouston v. Shearer, 99 Mass. 209 (1868); Crandell v. City of Taunton, 110 Mass. 419 (1872); Cole v. Inhabitants, 124 Mass. 307 (1878); Field v. Inhabitants, 126 Mass. 327 (1879).

(S) MICHIGAN.

SECTION 3. Who to be plaintiffs. No person can recover in ejectment, unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.

Sec. 4. Who to be defendants. If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named a defendant in the declara

tion; if they are 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; and all persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action.

R. S. Mich. 1882, Ch. 269.

(9) MISSOURI.

SECTION 4629. Parties to actions. The action shall be prosecuted in the real names of the parties thereto, and shall be brought against the person in possession of the premises claimed. (R. S. 1879, S. 2243-d.)

Sec. 4630. Who may be made co-defendants. The person from or through whom the defendant claims title to the premises may, on motion, be made a co-defendant. (R. S. 1879, S. 2244-e.)

R. S. Mo. 1889, Ch. 59.

(10) NEW JERSEY.

SECTION 3. Who shall be defendant. The defendant in the action shall be the person in possession, if the premises are occupied, or some person exercising ownership on the premises or claiming title thereto, in case they are unoccupied.

Sec. 4. Whom plaintiff may join as defendants. The plaintiff may join as defendant with the person in possession any other person who as landlord, remainderman, reversioner or otherwise may claim title to the premises adversely to the plaintiff.

R. S. N. J. 1877, 326.

(11) NEW YORK.

SECTION 3. Who to be plaintiff. No person can recover in ejectment, unless he has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.

2 R. S. N. Y. 1849, 399.

Sec. 4. Who to be defendant. If the premises for which the action is brought, are actually occupied by any person, such actual occupant shall be named defendant in the declara

PARTIES TO ACTIONS.

99

tion; if they are 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.

2 R. S. N. Y. 1849, p. 399.

(12) TENNESSEE.

SECTION 3954. How commenced. The action is commenced by a summons and declaration, in which the name of the real claimant is sued as plaintiff, and the proper name of the defendant is inserted.

Sec. 3955. Against whom. The action is brought against the actual occupant, if any, and if no such occupant, then against any person claiming an interest therein, or exercising acts of ownership at the commencement of the suit.

Milliken and Vertree's Statutes 1884, page 762.

(13) TEXAS.

SECTION 4788. Defendant, warrantor, etc., may be made a party. When a party is sued for lands the real owner or warrantor may make himself, or may be made a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.

Sec. 4789. Landlord may become defendant. When such action shall be commenced against a tenant in possession the landlord may enter himself as the defendant, or he may be made a party on motion of such tenant, and he shall be entitled to make the same defense as if the suit had been originally commenced against him,

Sec. 4790. The possessor shall be defendant. The defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto in case they are unoccupied.

R. S. Texas 1879, Title 96, ch. 1, p. 703.

(14) WISCONSIN.

SECTION 3074. Who may recover in ejectment. No person can recover in such action, unless he has at the time of commencing such action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established in such action.

Sec. 3075. Occupant to be a party, etc. If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the complaint; if they are 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 action.

R. S. Wis. 1878, ch. 133.

CHAPTER IV.

THE VENUE.

§1. The Venue Local.

2. The Venue in the Creation of New Counties.

§ 1. The Venue.—The question of the venue in actions for the recovery of the possession of real property is one capable of an easy solution. It must always, without exception, be brought in the county or jurisdiction district in which the lands are situated, for it is a local action in the most extensive sense of the term.'

§ 2. Venue-Creation of New Counties, etc.-Under the Constitutions of the States, defendants in all judicial proceedings are entitled to a trial by a jury of the county or vicinage. The venue in actions of ejectment has always been regarded as local. The Legislatures have no power to authorize a trial outside of the county in which the premises in dispute are situated. But where the proper court of a county in which lands are situated lawfully acquires jurisdiction, and the Legislature afterward, by a change in county lines or the creation of a new county, takes the lands out of the county where the action is pending, it may save and continue by a proper saving clause to the court the jurisdiction thus lawfully obtained, which otherwise, by legislative action, would be lost, and the suit may be prosecuted to final judgment and execution, the same as if no legislative action had been taken in the matter."

'Northern Ind. R. R. Co. v. Mich. Cent. R. R. Co., 15 How. 233; Putnam v. Bond, 102 Mass. 370; Draper v. Kirkland, 1 Head (Tenn.), 2; Blake v. Freeman, 13 Me. 130; Bellas v. Houtz, 8 Watts (Penn.), 373; Graves v. McKeon, 2 Denio (N. Y.), 639; Loeb v. Mathis, 37 Ind. 306; Watts v. Kinney, 6 Hill (N. Y.), 82; Atlantic, etc., Tel. Co. v. Baltimore, etc. R. R. Co., 14 J. & S. (N. Y.)377; Hamer v. Raymond, 5 Taunt. 789; Doulson v. Matthews, 4 T. R. 503; Mayor, etc. v. Ewart, 2

W. Bla. 1070; Mayor of London v.
Cole, 7 T. R. 587, 588; Mersey, etc.,
Nav. Co. v. Douglas, 2 East, 498, 499;
Livingston v. Jefferson, 1 Brock. C.
C. 203; Roach v. Damron, 2 Humph.
(Tenn.) 425; Warren v. Webb, 1
Taunt. 379.

2 Spalding v. Kelley, 66 Mich. 693; 33 N. W. Rep. 803 (1887); Cornell University v. Wis. Cent. Ry. Co., 49 Wis. 158; 5 N. W. Rep. 433 (1880); Blake v. Freeman, 13 Me. 130; see contra, Murdock v. Little, 18 Ga. 719.

« PředchozíPokračovat »