48 N.C. 128 | N.C. | 1855
Plaintiff showed in evidence a deed conveying the premises from one Bowen to Messrs. Wright and Miller, and from them to himself. He then proposed to show the record of a recovery in ejectment, wherein he was lessor of the plaintiff, and said Bowen was defendant; but his Honor held that it was not competent, unless he first showed a privity between the defendant in this action and the defendant in the action of ejectment; whereupon the plaintiff showed, that after the said action of ejectment was instituted, and while it was pending, *129 Bowen conveyed the premises, by deed, to one Johnston, who let the same to one Peterson, who let them to this defendant. The record was then received, (the defendant excepting,) and it appeared that the plaintiff in that suit had recovered his term, and had judgment for costs; also, that a writ of possession had issued thereupon, under which the defendant in this suit had been put out of possession and the present plaintiff put in, before this action was brought.
Defendant offered to show that Johnston, under whom he entered, had an older deed and a better right to the land in question than the plaintiff; but his Honor declined receiving the testimony. He instructed the jury that the plaintiff was entitled to the fruits of his recovery in ejectment, and that all persons coming in under the defendant, after the commencement of the action of ejectment, were in privity thereto, and bound by the recovery therein. To this instruction defendant again excepted. Verdict for plaintiff. Judgment and appeal. The law is as it was laid down by his Honor, and for the reasons given by him. See 3 Phill. on Evidence, 814, and other text books, and the cases cited.
Plaintiffs in ejectment and detinue would be defrauded of the fruit of their recoveries, unless a third person, who, pending the action, takes the place of the defendant in regard to the possession of the property, (although he is no party to the action,) be considered so far a privy as to be bound by the proceedings in respect to the right of possession. Hence, when a writ of possession issues after a recovery in ejectment, all persons, as well those not parties, as the party defendant, are put off the land, so that the plaintiff may have the fruit of his recovery. This is every day practice. So, if, pending an action of detinue, the defendant puts the property into the possession of a third person, under the execution, the sheriff takes the property wherever he finds it, and delivers it to the plaintiff. This is also familiar practice.
The action of trespass for mesne profits is a continuation or elongation of the action of ejectment, introduced as a matter of convenience and for the purpose of saving time; Miller v. Melchor, 13 Ire. 439; consequently, one who takes possession of the premises, pending the action of ejectment, although he does not make himself a party of record, is a privy in respect to the lis pendens, and stands "in the shoes" of the tenant who was in possession when the action was brought. Whether it be necessary, in order to make the recovery in ejectment evidence against one who takes possessionlite pendente, to show a connection between the defendant in the action of ejectment, and the person who takes possession lite pendente, we express no opinion. In our case, such a connection is shown; for the defendant in this action, is a sub-lessee of Johnston, to whom the defendant in the action of ejectment had conveyed *131 the premises, and in regard to whom he held possession as a quasi tenant at will, or occupier by his permission; so it amounts to a mere shifting of the possession from one tenant of Johnston to another.
PER CURIAM. Judgment affirmed.