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The action for mesne profits can not be maintained until there is a recovery of the land by the plaintiff in an action of ejectment. Burton v. Austin, 4 Vt. 105; Smith v. Benson, 9 Vt. 138.

An action of trespass is a proper mode of recovering mesne profits after a recovery in ejectment, under the acts of 21st March, 1806, and 13th April, 1807 (Pennsylvania). Osbourn v. Osbourn, 11 Serg. & R. (Pa.) 55.

§ 16. Parties Plaintiff.-Under the modern practice, the fictions of the common law being abolished, the plaintiff in actions for the recovery of mesne profits must be the real party in interest. He is in general the party who was the plaintiff in the ejectment suit, but the right of action may be assigned,' in which case the assignee becomes the real party in interest. A person is entitled to mesne profits which accrued during his minority. McGrub v. Bray, 36 Wis. 333.

A municipal corporation may maintain an action for mesne profits for the use of a street. City of Apalachicola v. Apalachicola, etc., Co., 9 Fla. 340. A cestui que trust who has recovered his lands may also have his action for the rents. Pagh v. Bell, 1 J. J. Marsh. (Ky.) 399.

Under Code Colo., § 3, requiring actions to be brought in the name of the real party in interest, an action may be maintained by a purchaser against trespassers for mesne profits accruing after his purchase, and before delivery of seizin, and pending ejectment by his grantor. Limberg v. Higenbotham, 11 Colo. 156; 17 Pac. Rep. 481 (1888).

A mortgagee who recovers the mortgaged premises in ejectment may maintain his action for mesne profits against the assignee of the mortgagor from the time he had notice to quit, and at any rate from the time of the service of the writ of ejectment. Lyman v. Morse, 6 Vt. 345; but see Sanderson v. Price, 1 N. J. 636; Keech v. Hall, 1 Doug. (Mich.) 21.

Where mortgagee brings writ of entry against mortgagor without declaring upon the mortgage, and recovers a judgment at common law by which he enters upon the mortgagor, the mortgagor is not liable in trespass for mesne profits. So where the grantee of an equity of redemption conveyed the same to a stranger, but still remained in possession, and mortgagee brought a writ of entry against him, not declaring on the mortgage, and recovered judgment at common law, and entered on the tenant by virtue thereof, but showing no title except under the mortgage, it was held, that tenant was not liable to mortgagee for mesne profits. Boston Bank v. Reed, 8 Pick. (Mass.) 459.

In Massachusetts a mortgagee can not recover mesne profits of a mortgagor, after a judgment for possession, for the time anterior to the recovery of his judgment. Wilder v. Houghton, 1 Pick. (Mass.) 87; Mayo v. Fletcher, 14 Pick (Mass.) 525.

The plaintiffs, grandchildren of the life-tenant, acquired by purchase the life-tenant's interest in said land, and brought ejectment against the defend

Cherry, 4 Yerg. (Tenn.) 305; Dean v.
Tucker, 58 Miss. 487; Harker v.
Whittaker, 5 Watts (Pa.), 474; Rich-
ardson v. Richardson, 72 Me. 403;

Van Alstine v. McCarty, 51 Barb. (N.
Y.) 437.

'Lord v. Dearing, 24 Minn. 110.

ant, who held adverse possession thereof. Plaintiffs' grandmother died pending the litigation, whereby plaintiffs' title was terminated. Held, that the action might nevertheless be continued for the recovery of mesne profits and damages. Hairston v. Dobbs, 80 Ala. 589; 2 So. Rep. 147 (1887).

Where the right of the plaintiff in ejectment to recover possession has terminated, and his right of recovery has therefore been limited to a claim for mesne profits and damages, and the defendant sets up in defense, first, that he had had adverse possession and made permanent improvements, and second, that he had held possession under color of title and in good faith, these defenses were incompatible, and that the defendant must be put to his election which he would rely on. Hairston v. Dobbs, 80 Ala. 589;

2 So. Rep. 147 (1887).

One who has purchased an estate for the life of another in land is not entitled to payment from the remainder-men for permanent improvements made by him on the land in a suit for the land by the remainder-men, where they do not claim mesne profits, though he may have thought that he got a fee-simple title when he purchased. Taylor v. Kemp, 86 Ga. 181, 12 S. E. Rep, 296.

A land owner sued the parties in possession for mesne profits. The defendants notified their grantor, who had warranted the title, and he conducted their defense. After recovering judgment, the plaintiff sued the grantor to recover the amount of such judgment. The defendants in the original suit were not made parties, and no objection was raised on that ground. Held, that the fact that some of said defendants had died after entry of judgment against them did not affect the suit against the grantor. Whitney v. City of New Orleans, 138 U. S. 595; 43 Fed. Rep. 215 (1891).

The action for the recovery of mesne profits may be brought against the defendant in the original action of ejectment. In case the defendant in the action of ejectment gave up the possession of the premises in suit to a third person, after the commencement of the suit, the action to recover the mesne profits may be brought against such third person, and he is liable for the same, provided always, of course, that the plaintiff recovers the premises in the ejectment suit. Jackson v. Stone, 13 Johns. (N. Y.) 447.

§ 17. Under the Old Practice.-The lessor of the plaintiff in the antecedent action of ejectment, is, of course, the person concerned in interest, but he may bring his action for mesne profits either in his own name, or that of his nominal lessee. The former, however, is the most advantageous method, as he may then, upon proper proofs, recover damages for the rents and profits received by the defendant, anterior to the time of the demise in the ejectment, which can not be done in an action at the suit of the nominal plaintiff; and the courts will not stay the proceedings until security be given for the costs, which will be done when the action for mesne profits is brought in the name of such nominal lessee.'

Adams on Ejectment, 447; Bul- ally observed, that when the ancient ler's N. P. 87. It may be here incident- practice is resorted to and the plaintiff

PARTIES DEFENDANT.

619

§ 18. Parties Defendant. The proper parties to be made defendants in the action to recover mesne profits are the persons who have wrongfully withheld the possession of the premises and appropriated the profits. And this rule embraces all persons coming into possession under the defendants during the pendency of the proceedings for the recovery of the land.' A land owner sued the parties in possession for mesne profits. The defendants notified their grantor, who had warranted the title, and he conducted their defense. After recovering judgment, the plaintiff sued the grantor to recover the amount of such judgment. The defendants in the original suit were not made parties, and no objection was raised on that ground. Held, that the fact that some of said defendants had died after entry of judgment against them did not affect the new suit against the grantor. Whitney v. City of New Orleans, 138 U. S. 595; 43 Fed. Rep. 215 (1891).

Where a defendant was added in ejectment, he having taken possession of the premises after the action was commenced, it was held that the only necessity for making him a defendant was to hold him for mesne profits, as he would then be concluded by the judgment. Willingham v. Long, 47 Ga. 540.

After judgment for the plaintiff in ejectment, trespass for the mesne profits, without proof of an actual trespass, does not lie against a person who was no party to the suit when the judgment was entered. Alexander v. Herbert, 2 Call (Va.), 508.

Where the heirs of a defendant in an action of ejectment are substituted upon his death, their liability for mesne profits is limited to the rents and profits accruing during the time the heirs are in possession. Cavender v. Smith, 8 Iowa, 360.

In Maryland, where a third person entered in the possession of the premises during the pendency of the ejectment, the defendant is still answerable for mesne profits; and the action for mesne profits may accordingly be brought against him. If he can prove, however, that the plaintiff received the profits, he is not then answerable for the profits so received. West v. Hughes, 1 Har. & J. (Md.), 574.

The action will lie against infants although they have never been in possession except by their guardian. Molton v. Mumford, 3 Hawks (N. C.), 483.

The action will lie against a corporation. McCready v. Guardians, etc., 9 S. & R. (Pa.) 94.

Where a party voluntarily, and with plaintiff's consent, was joined as defendant in ejectment for the purpose of testing his own title, and trying the right of possession of the land, it was held that the fact that he was

in the ejectment is a real person, the court will not permit him to release the action for mesne profits, should the lessee bring it in his name. Close's Case, Skin. 247; Anon. Salk. 260.

1 Bradley v. McDaniel, 3 Jones L.

(N. C.) 128; Merritt v. O'Neil, 13 Johns. (N. Y.) 447; Jackson v. Hills, S Cowen (N. Y.) 294; Jeffries v. Zane, 1 Miles (Penn.) 287; see Chirac v. Reinicker, 1 Wheat. (U. S.) 296.

thus united with the defendants, as against the title of the plaintiff, did not render him jointly liable with the other defendants for mesne profits. when he was powerless to prevent the trespasses of the other defendants, and did not aid, abet or encourage their commission. Eastwick v. Saylor,

85 Pa. St. 15.

§ 19. Personal Representatives. The liability of personal representatives to respond in damages for mesne profits as well as the right to recover the same, are in many States matters of statutory regulation. As a general rule it may be stated that where a person entitled to mesne profits dies, his personal representatives are entitled to the same accruing to the time of his death, and that accruing subsequently follows the title of the land. Originally, the right of action for mesne profits, being in the nature of an action of trespass, died with the party liable; but this rule has been changed in some States and the right may now be asserted against the personal representatives, heirs or devisees.'

In Tennessee, it is held that an executor can not maintain the action for mesne profits, although he is authorized by the will to sell the lands of the testator and divide the proceeds. The rents and profits being incident to the ownership of the land, could only be asserted by the person having the title. Brown v. McCloud, 3 Head (Tenn.), 280.

A compromise between plaintiffs and the heirs of a decedent, by which plaintiffs acquired title to land of which they had been in possession, and by which they were released from all liability for rent during the time they were in possession, does not relieve the administrator from accounting to plaintiffs for rents accruing after they obtained title. Garlington v. Copeland (S. C.), 10 S. E. Rep. 616 (1890).

In North Carolina, it is held that the executors were entitled to that portion of the mesne profits accruing up to the time of the owner's death, and the devisees to that accruing subsequently. King v. Little, 77 N. C. 135.

In New York, the mesne profits to the time of the death of the testator, go to the executor as part of the personal estate. Hotchkiss v. Auburn, etc., R. R. Co., 36 Barb. (N. Y.) 600.

20. Liability of Executors and Administrators-The Rule Stated By Adams.-As the action for mesne profits is an action of trespass, it can not be maintained against executors and administrators, for the profits accruing during the lifetime of the testator or intestate; nor will a court of equity interfere to enforce the payment of them against personal representatives, when the lessor has been deprived of his legal remedy by

1 See Brown v. McCloud, 3 Head (Tenn.), 280; Hotchkiss v. Auburn, etc., R. R. Co., 36 Barb. (N. Y.) 600; Rhodes v. Crutchfield, 7 Lea (Tenn.),

518; Cobb v. Biddle, 14 Pa. St. 444: King v. Little, 77 N. C. 188; Blight v. Ewing, 26 Pa. St. 135.

JOINDER OF CAUSE OF ACTION.

621 mere accident of the defendant's death. But where the lessor was delayed from recovering an ejectment by a rule of the court of law, and by an injunction at the instance of the defendant, who ultimately failed both at law and in equity, the court decreed an account of the mesne profits against his (the defendant's) executors.'

The action for mesne profits can not be maintained against executors or administrators for the profits accruing during the lifetime of the testator or intestate; nor will a court of equity interfere to enforce the payment of them against personal representatives when the lessor has been deprived of his legal remedy by the mere accident of the defendant's death. But where the lessor was delayed from recovering an ejectment by a rule of the court of law, and by an injunction at the instance of the defendant, who ultimately failed both at law and in equity, the court decreed an account of the mesne profits against his (the defendant's) executors. Pultney v. Warren, 6 Ves. Jr. 73.

§ 21. Joinder of the Cause of Action.-The general rule under the modern practice in the American States allows a party bringing an action of ejectment to unite in the same action a claim for mesne profits, and if he recovers the possession of the lands in controversy he may have his mesne profits, or, as they called in some jurisdictions, his damages, assessed in the same suit.'

In speaking of joining in one suit a claim for possession and a claim for mesne profits, Chief Justice McKean said, of the difficulty the jury may labor under in deciding on the titles of the parties to possession, and at the same time in fixing the value of the mesne profits if the verdict shall be for the plaintiff, "There can be no great hardship in this. In actions of waste, dowry, assize, and all others, where the thing itself, as well as the damages, is recovered, the jury are liable to the same inconvenience; nor can I perceive any great perplexity that can arise in determining the rent, or annual value, of a house or parcel of land, when complete evidence is given of it. It appears to me that the inconvenience or the hardship is the other way. After a person has been unlawfully kept out of his house or land for a series of years, and undergone great trouble and expense in recovering a judgment for them, to give him the possession merely, without any satisfaction for the use and occupation during the action, does not seem complete justice." Boyd's Lessee v. Cowan, 4 Dall. (U. S.) 138.

1 Adams on Ejectment, 449; Pult- Dawson v. McGill, 4 Whart. (Pa.) 230; ney v. Warren, 6 Ves. J. 73.

2

? Beard v. Federy, 3 Wall. (U. S.) 478; Hecht v. Colquhoun, 57 Md. 563; Vandevoort v. Gould, 3 Trans. App. (N. Y.) 57; Garner v. Jones, 34 Miss. 505; Armstrong v. Hinds, 8 Minn. 254; Lord v. Deering, 24 Minn. 110; Field v. Columbet, 4 Saw. (U. S.)523;

Harrall v.Gray, 12 Neb. 543; Carman v. Beam, 88 Pa. St. 319; Bottroff v. Wise, 53 Ind. 33; Patterson v. Ely, 19 Calif. 28; Walker v. Mitchell, 18 B. Mon. (Ky.) 541; Livingston v. Tanner, 12 Barb. (N. Y.) 481; Hotchkiss v. Auburn, etc., R. R. Co., 36 Barb. (N. Y.) 600.

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