By the Court, Gridley, J.
This is an appeal from a judgment of the county court of Herkimer county, affirming the judgment of a justice of the peace. The action was brought to recover the mesne profits of the premises described in the declaration, accruing between the 8th day of February, 1850, when Van Slyke was- put in possession of the premises, upon a recovery in ejectment against the plaintiff and one Leonard Harper; and the 23d of December in the same year, when the possession was restored by a writ of restitution, on a reversal of the said judgment.
Several very interesting questions have been discussed by the respective counsel, with much ingenuity, upon which we do not intend to express any opinion; being satisfied that an error was committed, upon the merits of the case, for which the judgment should be reversed. The return of the justice shows that he gave judgment for the use and occupation of the premises, at the rate of $30 a year, (the only valuation appearing in the testimony,) for exactly $26,25, the precise sum, at that rate, for the period during which the possession was withheld, viz. ten months and fifteen days. This action, though in the nature of trespass, “ is an equitable action, and admits of every kind of equitable defense.” (Murray v. Gouverneur, 2 John. Cas. 438.) *30And it was the intention of the legislature to abolish the action altogether, at the revision of the statutes in 1830, and to substitute a suggestion in the nature of an action for use and occupation. (2 R. S. 309, §§ 41 to 54. 6 Wend. 534. 10 Id. 566. 6 Hill, 328.) Granting, however, that an action in the nature of trespass was properly brought in this case, for the reason that it does not fall within the precise terms of the statute, yet it is to be regarded, substantially, as if it were an action for use and occupation, brought to recover the value of the rents during the time that the possession was withheld. If, therefore, the plaintiff has recovered the full value of the rents and profits, when he was only entitled to nominal damages ; or if he has recovered the full value of the entire rents and profits, where he was only entitled to half; then, in either case, the judgment is erroneous, and should be reversed. The defendant’s counsel insisted before the justice, that under the evidence a recovery could only be had for one-half the value of the use of the premises, which was overruled by the justice. It is true that when persons jointly interested sue separately, the proper way for the defendant to avail himself of the error is to plead it in abatement, (1 Chit. Pl. 54. 6 T. R. 766. 7 Id. 269. 5 East, 407, 420;) but notwithstanding no plea in abatement is interposed, the defendant is still entitled to an apportionment of the damages ; and ' a new trial was granted in Rich v. Penfield, (1 Wend. 380, 386,) where the plaintiff recovered full damages. (See also 6 John. 108; 1 Saund. 291, notes, g. h.) The plaintiff has averred in his declaration, and he has recovered on the theory of a sole possession, and of a sole right to the possession of the profits during the time that Van Slyke occupied them. We do not think that he established the fact of an entire and sole possession in himself, and much less, of a sole right to the possession during the same period.
(1.) The first piece of evidence introduced by the plaintiff was the record of a judgment, with a bill of exceptions annexed, in the suit of Van Slyke v. Stephen Sheldon and Leonard Harper, by which the premises in question were recovered against the said defendants, and a writ of possession was issued thereupon. *31And this was followed by a record of reversal in the same cause, with an order for restitution, and a writ of restitution executed the 23d day of December, 1850. Both these judgments went on the theory of a joint possession by Harper and Sheldon. The record of the recovery by Van Slyke is evidence that a joint possession must have been proved or admitted, in both defendants ; and the reversal in no respect proved the contrary fact. It turned on the invalidity of the foreclosure of Van Slyke’s mortgage. The returns to both the writs of possession show that the writs were executed as well by putting Harper out and into possession, as Sheldon ; and it is not material that the officer did not see Harper present at the execution of the writ, if the evidence shows that he had an actual possession, and the right to possession.
(2.) The evidence does show that Harper had both an actual possession and the right to the possession. It appears from the cross-examination of Stevens, that the west or store part of the premises was delivered up on request, and that the writ of possession was only executed against the defendant Sheldon as to the east part, or dwelling house part of the premises. Morgan E. Case swears that when he served the papers on Sheldon and Harper, in the ejectment suit, Sheldon and Harper were both in possession of the premises; Sheldon occupying the east part, and Harper having the key of the west part, and boarding with Sheldon. And the testimony of both this witness .and of the witness John Hall, shows that Sheldon, by his own declarations, had no interest in the controversy, and that he spoke of the deed from Trask to Harper; and .of his taking up his receipts, to see how much he had paid on the premises. How this evidence becomes material in connection with facts furnished by the record. The answer of Sheldon claims neither the ownership nor the right to the possession of the premises; while the answer of Harper sets up a mortgage, which Wyman Trask foreclosed against Sheldon as the mortgagor, in chancery, and that Trask purchased in the premises on the sale, and took a master’s deed; and then conveyed the premises to the defendant Harper. Here then was the title, as between Harper and Sheldon, irre*32vocably vested in Harper, and the right of possession of Sheldon utterly subverted. And the evidence of Sheldon’s declarations, before referred to, are in harmony with the facts thus shown to exist. The only question in dispute was whether Van Slyke’s prior mortgage had been foreclosed, so as to enable him to recover in ejectment. Now the case is entirely barren of evidence that when Harper left the country he conveyed his right of property, or possession, to Sheldon. On the contrary he appears to have been a mere naked possessor of the east part of the building, without any sort of right to the actual possession of the west part. I have alluded to the evidence furnished by the record, not to show the title, but to show the character and qualification of the possession of Sheldon, and that he had no right of possession in Harper’s share. Harper had the title of the premises quoad Sheldon. And he allowed Sheldon to occupy with him, as having a joint possession, or rather, a possession of a part of the premises; and then abandons his own possession, without conveying it or any right to it, to Sheldon; and Sheldon has recovered for the whole use and occupation. Now doubtless the bill of exceptions, as such, is not evidence between these parties; but the record, in a suit between the same parties, is evidence, and imports absolute verity as to all the facts that are shown by it. Nothing is more correct than to read from the record, to show the existence and dates of notes on which the action was broughjj. In our judgment there was no ground for a recovery of more than one-half the amount of the rents and profits; even if there was a foundation laid for more than nominal damages, on this ground alone.
II. It is entirely clear that Sheldon held under Harper, and that his possession was subordinate to Harper’s title and possession. Under this state of facts, we think his declarations, especially when accompanied by acts, while he was in possession, were admissible for the purpose of showing the character of the possession which Harper and Sheldon had in the premises. This evidence was received, and afterwards overruled and struck out. (Cowen & Hill's Notes, 650, 655, 596 to 601. 4 Cowen, 587. 4 John. 230. 10 Id. 377.) Now these declarations were im*33portant in one view, which was to show that it was altogether improbable that he would, have surrendered his possession, or conferred any right of possession, sufficient to enable him to sustain an action, for the entire use and occupation, against Van Slyke. This then was evidence of importance, that ought to have been received; and had it been received, its tendency would have been directly to diminish the judgment. That was an error for which the judgment should be reversed.
[Oneida General Term,
January 5, 1852.
Gridley, W. F. Allen, Hubbard and Pratt, Justices.]
There are other important questions, such as, the defendant being in possession after forfeiture as a mortgagee; and whether, (though it would not authorize him to recover in ejectment) it may not enable him to defend against all but nominal damages, (15 Wend. 248;) upon which we express no opinion.-
The judgments of- the county court, and of the justice, must be reversed.