Dodge v. Page
49 Vt. 137
Vt.
1876
Check Treatment

The opinion of the court was delivered by

Wheeler, J.

There can be no question but that in the .action ' of ejectment, the plaintiff, in order to recover the seisin and possession of the demanded premises, must have title as against the defendant both at the commencement of the action and at the time of trial. And till the statute of 1851, he could not recover the mesne profits until he could recover the possession ; but since that statute, he may recover damages for the detention, where his title has expired or been conveyed by him after suit bi’ought, although not entitled to recover the possession. Gen. Sts. 338, s. 4. In this case, at the time of bringing suit, the plaintiff, according to the findings of the County Court, as tenant in common with others, was entitled to recover the possession and mesne profits of the whole for himself and co-tenants against the defendant, who was then a stranger to their title in possession, claiming the whole by another title, and expressly denying the plaintiff’s title, and refusing possession to him. Haynes & Wife v. Bourn, 42 Vt. 686. At the time of trial the defendant had acquired the title of one of the plaintiff’s co-tenants, so that he and the plaintiff were then tenants in common with others of the title, but he had not in any manner changed his attitude in respect to the possession, toward the plaintiff. Under these circumstances, it may well be questioned whether he could stand on his newly acquired title to the tenancy in common so as to defeat the plaintiff’s recovery of the possession he then and all the while had the right to. But it is not necessary to determine in this case whether the procuring of the title of one of the plaintiff’s co-tenants would, without a refusal of possession after, defeat the plaintiff’s action or not. For a tenant in common may maintain ejectment against his co-tenant if ousted of the possession by the co-tenant. *140Litt. s. 322 ; Co. Litt. 199 b.; 2 Bl. Com. 194 ; Johnson v. Tilden, 5 Vt. 426 ; Roberts, admr. v. Morgan, 30 Vt. 319. And if a defendant after suit brought and before or during trial, procures a title that will defeat the plaintiff’s recovery, the plaintiff may afterwards, and before or’on trial, do anything that will meet and defeat the right the defendant has so procured. Downer v. Bowman, 17 Vt. 417. Now this plaintiff had during the trial the same right of his own to the possession that he had when he brought suit; and if the acquisition of a right to possession by the defendant would, without a fresh refusal of the right of the plaintiff, defeat the action, the plaintiff had the right to show a refusal, or, in other words, to show that the ouster of himself by the defendant continued. If the defendant had once been in possession with the plaintiff, or, nothing more than that he was in possession appeared, so that he would be presumed to be in for himself and the plaintiff, an actual ouster in the one case and denial in the other would be necessary. But here the plaintiff was out of possession and the defendant in, and the defendant had expressly refused the plaintiff’s demand of possession on the ground of the Clough title ; and after he procured the title of a co-tenant, he still insisted on the Clough title. This was a denial of the plaintiff’s right, and a continuance of the refusal the defendant had made before on the strength of the Clough title, and showed an intention on the part of the defendant to keep the plaintiff out, and was a continuance of the ouster. Shumway v. Holbrook, 1 Pick. 114. Upon this state of the case the plaintiff was entitled to recover, in the words of the statute, “ on the merits, according to his right.” The case does not show what his right is, nor that there were no rents and profits, but only that no proof was adduced as to their value, therefore the cause must be remanded for a new trial.