72 Pa. 267 | Pa. | 1873
The opinion of the court was delivered, by
That a tenant in common may maintain an action of trespass for mesne profits against his co-tenant, by whom he has been ousted, after a recovery against him in ejectment, is too well settled to admit of doubt: Hare v. Fury, 3 Yeates 13; Chambers v. Lapsley, 7 Barr 24; Bennet v. Bullock, 11 Casey 364; Critchfield v. Humbert, 3 Wright 427. The judgment in ejectment is conclusive evidence of the plaintiff’s right to the possession of the premises, and his right to mesne profits from the service of the writ: Osbourn v. Osbourn, 11 S. & R. 55; Huston v. Wickersham, 2 W. & S. 309; Postens v. Postens, 3 Id. 182; Man v. Drexel, 2 Barr 202; Man v. Drexel, Id. 271; and it is also conclusive evidence that the defendant was in possession of the premises when the writ was served, and estops him from denying that he had possession, or that his possession was tortious. But it is not conclusive evidence of his possession after the service of the writ, and will not prevent him from showing that he abandoned or surrendered the possession to the plaintiff, or was not in it after the writ was served: Mitchell v. Freedley, 10 Barr 198 ; Sopp v. Winpenny, 18 P. F. Smith 78. But though not conclusive, it is primfi facie evidence that he continued in possession down to the time when the writ of habere facias possessionem was executed. It follows that under the evidence in this case the plaintiff was entitled to maintain the action of trespass for mesne profits. The judgment in ejectment for the undivided three-fourths of the land, for which the action was brought, was conclusive of the plaintiff’s right to the possession and his right to the mesne profits from the commencement of the suit, and of the defendants’ possession at the date of the service of the writ; and in addition to the evidence furnished by the judgment there was direct and positive testimony that the defendants were in the exclusive possession of the land from the date of the service of the writ until after the recovery in the ejectment. If the evidence was believed the plaintiff was entitled to recover. But the court below, misapplying the language of the Chief Justice in delivering the opinion of this court, in Lane v. Harrold, 16 P. F. Smith 319, which was a mere question of costs, told the jury that there had been no such recovery in ejectment shown by the evidence as would sustain a recovery in this action, and instructed them to return a verdict for the defendants. This was clearly error. The court, instead of giving a binding direction to find for the defendants, should have submitted the case to the jury, under proper instructions, for their determination upon the evidence.
Judgment reversed, and a venire de novo awarded.