Avent v. Read

| Ala. | Jun 15, 1835

By Mr. Justice Hitchcock :

This was an action of trespass to try. titles, and to recover damages, brought tinder the statute, in lieu of the action of ejectment.

There are several assignments, only two of which were argued by the counsel for the plaintiff in error. The others, though not abandoned, were not particularly noticed, and as the Court, on inspection of the record, does not discover any error in them, they wilt not be noticed in this opinion.

The errors that have been argued, arise upon the' following state of facts.

Read purchased at sheriff’s sale, a quarter section •of land, under a judgment against Avent, and brought this action, to recover possession. One Gaston, ap•plied to the Court, to be permitted to defend the suit, as the landlord of Avent, alleging, that he had pur■chased the land of Avent, before the judgment was •rendered, under which the land was sold. The Court refused to permit him to defend, and also refused to permit Avent to set up an adverse title in Gaston. The Court also instructed the jury, that in this action, the plaintiff might recover damages for the detention-of the premises, down to the day of the trial of the cause.

1. Upon the first part of this case, it is to be remarked, that as a general rule, a defendant in ejectment may set up, against the plaintiff, an outstanding title in another; and the landlord may be permitted to defend, by being made a co-defendant. But this rule has exceptions, and this is one of them. It has been held,a that in ejectment, by a purchaser, under a sheriff’s sale, against the debtor, who refuses to give up possession, the defendant cannot shew title in another; for'the plaintiff comes into exactly such estate as the debtor had; and if it was a tenancy, the plaintiff will be tenant also, and will be estopped in a suit by the landlord from disputing his right, in the same manner as the original tenant, who becomes quasi- tenant at will to the purchaser. The same principle was recognised also in 1 Johns. Cases, 152 — 1 Johns. Rep. 44 — in 12 Johns. Rep. 182, and in the case of Scott vs. Hancock, in this Court. There was no error therefore, in this part of the casei

As to the 2d point in relation to the damages. The act abolishing fictitious proceedings in this action, declares, that the plaintiff shall endorse on his writ that the action is brought as well to try titles, as to recover damages, and that if he recover, he shall be entitled to an execution for possession, as well as costs and damages. This act received a constuction in the case of White vs. St. Guirons,^a which sustains the decision of the Court in this case. It was there decided, that the ■“ recovery of damages, to . the extent of the mesne profits, is an appropriate object of the action of trespass.” The Legislature, in giving this action, intended not only to abolish the legal fictions in the action of ejectment, but also, to enable the plaintiff in the same suit to recover full satisfaction for the detention of the premises, and thereby accomplish in one action, what before, could only be done by two; to do this, damages must be allowed from the commencement of the trespass, down to the time of trial.

Idle judgment must therefore be affirmed.

a Ala. R. 331.

3 Caines’ Rep. 188-10Johns.223.