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RULE STATED IN ADAMS.

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in ejectment is not admissible in evidence. He must also prove an entry upon the lands as in other cases.'

§ 119. The Rule Stated in Adams.-When the plaintiff seeks to recover the mesne profits accruing antecedently to the day of the demise in the declaration in the ejectment, he must produce the regular proof of his title, or right to the possession of the premises, and the judgment in ejectment is not admissible in evidence for him. He must also, it appears, in such case prove an entry upon the lands, though some doubt seems to exist as to what proof of entry will be sufficient. By some it has been said, that the plaintiff is entitled to recover the mesne profits only from the time he can prove himself to have been in possession; and that, therefore, if a man make his will and die, the devisee will not be entitled to the profits until he has made an actual entry, or in other words, until the day of the demise in the ejectment, for that none can have an action for mesne profits unless in case of actual entry and possession. Others have holden, that when once an entry has been made, it will have relation to the time the title accrued, so as to entitle the claimant to recover the mesne profits from that time; and they say that if the law were not so, the courts would never have suffered plaintiffs in ejectment to lay their demises back in the manner they now do, and by that means entitle themselves to recover profits to which they would not otherwise be entitled. The latter seems the better opinion; but these antecedent profits are now seldom the object of litigation, from the practice of laying the demise and ouster immediately after the time when the lessor's title accrues.*

§ 120. The Judgment in Ejectment as Evidence. The judgment in ejectment is in general conclusive evidence as against the defendant and his servants, of title in the plaintiff from the date of the demise laid in the declaration. The rule

12 Greenleaf on Evidence, § 333; Adams on Ejectment, 454; Jackson v. Randall, 11 Johns. (N. Y.) 405; Dewey v. Osborn, 4 Cow. (N. Y.) 329; Marshall v. Dupey, 4 Marsh. (N. S.) 389; Poston v. Jones, 2 Dev. & B. 294; Whittington v. Christian, 2 Rand. (Va.) 353; Aslin v. Parkin, 2

3

Burr. 665, 668; West v. Hughs, 1 Har. & J. (Md.) 574.

Adams on Ejectment, 455.

3 The term " demise laid in the declaration" is tantamount to the phrase "from the time the plaintiff was entitled to possession." Under the modern practice it would express the idea

is founded on the reason that the parties have once had their day in court on the question of title and that is sufficient.' If the plaintiff claims profits accruing prior to the demise as he has laid it, the question of title is then open again for investigation.'

The term "demise" may be more fully illustrated by reference to the common law declaration on ejectment.

Declaration by original, on a single demise.

-Term, in the

Richard Roe, late of

IN THE QUEEN'S BENCH.

-year of the reign of Queen Victoria,- -(to wit, yeoman, was attached to answer John Doe of a

plea, wherefore the said Richard Roe, with force and arms, etc., entered into barns,stables,- -outhouses,yards,

-messuages,

-gardens,

-orchards,- -acres of arable land,- -acres of meadow land and- -acres of pasture land, with the appurtenances, situate, etc., which A B had demised to the said John Doe, for a term which is not yet expired, and ejected him from his said farm; and other wrongs to the said John Doe there did, to the great damage of the said John Doe, and against the peace of our lady the now Queen, (etc.) And thereupon the said John Doe, by- -his attorney, complains; that, whereas, the said A B, on (etc.) at (etc.) had demised the said tenements with the appurtenances, to the said John Doe, to have and to hold the same to the said John Doe and his assigns, from the- -day of-then last past, for and during and until the full end and term of- -years from thence next ensuing, and fully to be complete and ended: By virtue of which said demise, the said John Doe entered into the said tenements with the appurtenances, and became and was thereof possessed, for the said term so to him thereof granted: And the said John Doe, being so thereof possessed, the said Richard Roe, afterwards, to wit, on (etc.) with force and arms, (etc.) entered into the said tenements with the appurtenances, which the said A B had demised to the said John Doe, in manner and for the term aforesaid, which is not yet expired, with the appurtenances, in- -which A B hath demised to the said John Doe, for a term which has not expired, and ejected him

better to say, "during the time the borne, 4 Cow. (N. Y.) 329; Marshall v. plaintiff was wrongfully kept out of Dupey, 4 Marsh. (Ky.) 389 (N. S.); possession." Poston v. Jones, 2 Dev. & Batt. 1Chirac v. Reinicker, 11 Wheat. (N. C.) 294; Whittington v. Christian (U. S.) 280; Kuhns v. Bowman, 91 2 Rand. (Va.) 353. Against third Pa. St. 504. The record of recovery persons, however, it is not conclusive in ejectment, is conclusive evidence but only admissible to prove the posof the title in the lessor of the plaint- session. Chirac v. Reinicker, 11 iff, from the time of the demise laid, Wheat. (U. S.) 280. against the defendant and his servants, who can not, therefore, in bar of an action of trespass, show title in another after that time. Dewey v. Os

2 Dewey v. Osborne, 4 Cow. (N. Y.) 329; Marshall v. Dupey, 4 Marsh. (Ky.) 389 (N. S.); Poston v. Jones, 2 Dev. & B. (N. C.) 294.

JUDGMENT IN EJECTMENT.

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from his said farm; and other wrongs to the said John Doe there did, to the great damage of the said John Doe, and against our peace: And have you there the names of the pledges, and this writ. Witness ourselves at Westminster, the day of -in the- -year of our reign.

Adams on Ejectment, 465.

§ 121. The Judgment in Ejectment. Where the plaintiff proceeds only for the recovery of the mesne profits, accruing subsequently to the day of the demise in the declaration, the judgment in ejectment is prima facie evidence of his right; and it is immaterial whether the judgment is founded on a verdict, or has been obtained by default.

The judgment is also evidence against a party coming into possession and occupying the premises under the defendant in the ejectment, although not himself included in it; and it is in like manner evidence when the action is brought against a party who has not been in the actual occupation, provided it be proved that the defendant in ejectment was his tenant, and that the relation of landlord and tenant subsisted between them; and this relationship must be proved by the production of the agreement, if the tenancy has not been created by parol.❜

The record of a suit by plaintiffs against the adverse holder, in which they recovered possession, is admissible to show adverse occupancy. Faulcon v. Johnston, 102 N. C. 264; 9 S. E. Rep. 394 (1889).

The judgment in the preceding action of ejectment is also evidence in the action for mesne profits against a party coming into possession and occupying the premises under the defendant in the ejectment, although not himself included in it; he is in such case a privy to the record. Doe v. Whitcomb, 8 Bing. 46.

Nor can the record of the judgment in ejectment be objected to by the ejected defendant, on the ground that title to the land can not be litigated in a personal action, as the application of the rule would bar his action for the crops. Carlisle v. Killebrew, 89 Ala. 329; 6 So. Rep. 756.

In trespass to try titles, it seems that the record of a previous suit between the ancestor of the plaintiff and the defendant for the same premises may be good evidence to show notice to the latter of a paramount title, in order to fix a period from which the plaintiff is entitled to recover damages for the occupancy of the premises. Kennedy v. Heirs of M'Cartney, 4 Porter (Ala.), 141.

If the mortgagee, having a judgment for possession upon his mortgage, sue a writ of entry at common law, he may recover judgment for mesne

1 Doe v. Whitcomb, 8 Bing. 46.

Doe v. Harvey, 8 Bing. 239; Adams

Doe v. Harlow, 12 Ad. & Ell. 42, on Ejectment, 457. note d.

profits from the time of rendition of the prior judgment. Haven v. Adams, 8 Allen (Mass.), 368.

Neither can the judgment be excluded as evidence, under the rule that a prior judgment in ejectment is not admissible in a subsequent suit between the parties, as the rule applies only to a subsequent suit in ejectment. Carlisle v. Killebrew, 89 Ala. 329; 6 So. Rep. 756.

§ 122. When the Action Is Against Third Persons.-When a judgment in ejectment is recovered against the person in the actual possession of the premises, and the plaintiff afterward brings an action for the recovery of mesne profits against the person under whom the defendant in the ejectment suit held the possession, to entitle the plaintiff to recover the burden of proof is upon him to show, (1) that he had, at the time the trespasses mentioned in the declaration were committed, the actual possession of the premises, or a title thereto; (2) that the defendant entered upon the possession of the plaintiff and expelled him, and kept him out of possession; (3) that the defendant, by his agents or tenants, received the rents, issues and profits while the plaintiff was kept out of possession; (4) that the plaintiff had, before the commencement of the action. for mesne profits, re-entered upon the premises, and regained possession thereof; and (5) the part of the premises held by the defendant's authority, and the value thereof.'

§ 123. Proof of Defendant's Possession When the Action Is to Recover Mesne Profits.-The plaintiff must also prove the length of time that the defendant has been in possession of the premises, for the judgment in ejectment affords no evidence of possession. He can only recover damages for the time he proves the defendant to have been in actual occupation, or in receipt of the rents and profits from parties in possession under them."

124. Execution of the Writ of Possession. In actions for mesne profits, proof of the execution of a writ of possession is not necessary, if the plaintiff has been let into possession by the defendant. And it has been doubted whether

The fact that persons who are not parties to an ejectment suit undertake the defense of such suit, and fail therein, will not furnish the slightest evidence of the plaintiff's title or possession in an action against such persons for mesne profits. Ains

lie v. The Mayor, etc., of New York, 1 Barb. (N. Y.) 158; vide Poston v. Henry, 11 Ired. (N. C.) 301.

2 Adams on Ejectment, 458; Dodwell v. Gibbs, 2 Car. & P. 615; West v. Hughs, 1 Har. & J. (Md.) 574.

EXECUTION OF WRIT OF POSSESSION.

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such evidence is ever necessary, except upon judgment by default; but it is, notwithstanding, prudent to be prepared with it in all cases, unless the plaintiff has been let into possession by the defendant.'

The reason assigned for this distinction is, that where the judgment is had against the tenant in possession the defendant, by entering into the consent rule, is estopped both as to the lessor and lessee, so that either may maintain trespass, without an actual entry, but that, where the judgment is had against the casual ejector, no rule having been entered into, the lessor shall not maintain trespass without an actual entry, and, therefore, ought to prove the writ of possession executed. But this reasoning is not satisfactory; for, if the tenant be concluded by the judgment in the ejectment from controverting the plaintiff's title, it should seem he is concluded from controverting his possession, for pcssession is part of his title. See Thorp v. Fry, B. N. P. 87, et S. N. P. 693 (n. 50) et Aislin v. Parkin, Burr. 665.

In an action for mesne profits, founded on a recovery by default against the casual ejector, it is, in general, necessary to show a writ of possession executed. But not where the tenant voluntarily abandons the possession, and the plaintiff in ejectment enters. Jackson v. Combs, 7 Cow. (N. Y.) 36. Where the judgment in ejectment is against the tenant who comes in and defends, the judgment is sufficient evidence in the action for mesne profits, without any writ of possession executed. Jackson v. Combs, 7 Cow. (N. C.) 36.

125. For What Time the Defendant Is Liable.-As a general rule of law the defendant can not be held liable for mesne profits accruing prior to his own entry into the premises, even though such profits have been taken by those under whom he entered. He can be charged only for the rents and profits accruing during the time he has been in the actual possession of the premises in dispute, in the character of a disseizor. A plaintiff in ejectment can recover mesne profits only from the time his right to the possession accrued. He is not restricted, however, to the rents accruing before the commencement of the suit in ejectment, but may recover for the rents and profits up to the time of the trial if the defendant continues in possession.*

$126. Mesne Profits and the Statute of Limitation.-The rule of law which allows the plaintiff to recover mesne profits

'Adams on Ejectment, 458; Calvert v. Horsefall, 4 Esp. 67.

Gardner v. Grannis, 57 Ga. 539. Jacks v. Dyer, 31 Ark. 334. McCrubb v. Bray, 36 Wis. 333; see also New Orleans v. Gaines, 15 Wall. (U.S.) C24; Love v. Shartzer, 31

Calif. 487; Dean v. Tucker, 58 Mics. 487; Ringhouse v. Keener, 63 Ill. 230; Bell v. Medford, 57 Miss. 31; Whissenhunt v. Jones, 78 N. C. £61: Dawson v. McGill, 4 Whart. (Penn.) 230.

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