Shumake v. Nelms' Adm'r
25 Ala. 126
Ala.
1854
Check Treatment
GOLDTHWAITE, J. —

Thе first question is, whether Nelms, in Ms action of trespass to try titles, could have recovered in damages the rents of the land accruing up to the time of the verdict in that action; and we are clear that he could. The objеct of the act of 1821 (Clay’s Dig. 320, § § 43, 44, 45) was, to give the owner of lands a remedy to recover possession in the action of trespass, and in the same proceeding to recover damages and costs; and hence in Cummings v. MсGehee, 9 Porter 349, it was held by this court, that an action for mesne profits, accruing previous to the rendition of judgment in an action of trespass to try titles, could nоt be maintained. It can make no difference, that the action was commenced against a tenant whоse term expired before the rendition of the judgment, if the landlord was made a party to the suit, and his possessiоn continued up to the time of the verdict, as we held in Rowland v. Ladiga, 21 Ala. 9, that the defendants might protect themselvеs in this action from a joint judgment for damages, by showing the character and extent of their separate pоssessions. Upon this authority, if ‍‌​‌​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌​​‌​‌​​​‌‍A and B were sued, A could show that he and B held jointly but a portion of the lands sued for; and the plaintiff, in such a case, would be entitled to a joint verdict against them, for *134tbe value of such possession, and he also would be entitled to a verdict against B alone, for the damages resulting from the occupation оf the remaining portion by him. In the particular case referred to, the decision was made with referencе to the occupancy of distinct portions of the land by the defendants ;' but the principle is equally apрlicable to the time of possession, being founded on the rule which obtains in the action for mesne profits, which holds each occupant responsible only for the length of time he has been in possession.— Holcomb v. Rawlins, Cro. Eliz. 540; Morgan v. Varick, 8 Wend. 587. The plaintiff Nelms was, therefore, entitled to have recovered in his action to which the MсKeens were a party damages covering the possession of the land sued for up to the verdict, and fоr that reason the judgment in that action was conclusive upon ‍‌​‌​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌​​‌​‌​​​‌‍that point (Cummings v. McGehee, supra); and the evidence showing that damages were not recovered up to that time, was improperly admitted ; and as the record shows these damages were paid, they could not, for that reason, be recovered a seсond time.

For the error we have noticed the judgment must be reversed ; but it is necessary that some of the questions presented upon the record should be decided, in order that the case may be proceeded with сorrectly on another trial.

We have held, that after a recovery in trespass to try titles, trespass for the mesne profits accruing for the period intervening between the recovery of the judgment and the execution оf the writ of possession, would lie against.the defendant in the first action ; and ‍‌​‌​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌​​‌​‌​​​‌‍we think it clear, also, that this action may be maintained against any one coming into possession under the defendant, for the length of time he ocсupies.— Holcomb v. Rawlins, supra; Jackson v. Stone, 13 Johns. R. 447; Morgan v. Varick, supra. Hence it follows, that the value of the possession of the lands by Shumake, subsequent to thе verdict in the suit of Nelms against the McKeens, would be recoverable in an action of trespass for the mesne profits.- — • But the question here is, whether it can be recovered in an action for use and occupаtion. In Hull v. Vaughan, 6 Price's Exch. Rep. 157, the facts in evidence, as understood by the court, were: that Hull was entitled to thе possession, and at the instance of Vaughan gave it up to him, supposing that he *135was entitled to it; and it was beld, that the law raised an assumpsit in favor of Hull, the real ownеr, for the use and occupation. Catterlin v. Spinks, 16 Ala. 467, was decided upon the authority of the case in Exchequer, and both the cases were based upon the principles of the common law, applied, it seems to me, with very great liberality, to meet the obvious ‍‌​‌​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌​​‌​‌​​​‌‍justice of the case ; it being supposed that no recovеry of the rents could be had, unless in the form of action adopted. Each of these cases rests entirely upon the doctrine of implied assumpsit. In the case before us, however, the evidence shows, that Shumake rented thе premises from the McKeens, and expressly promised to pay the rent to them ; and upon this evidence, stаnding by itself, we do not think the plaintiff could recover for use and occupation, as an implied assumpsit to one cannot be raised in the face of an express promise to another for the same consideration. — Whiting v. Sullivan, 7 Mass. 107; Jewett v. Somersett, 1 Greenl. 125.

If, however, there was an express promise, made by Shu-make during the pendency of the action of trеspass to try titles, and while in possession of the land, to pay High [the ‍‌​‌​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​‌​‌​‌‌​‌‌‌​​‌​‌‌​​‌​‌​​​‌‍rent, it is clear that, under the authority of Smith v. Houston, 16 Ala., the latter would be entitled to recover the rent accruing after the suit in this form of action.

The evidencе on the part of Shumake, to show that Nelms had no title to the premises, was properly rejected. The rule is, that the recovery in ejectment is conclusive between parties and privies, as to the title of the lessor of the plaintiff, in trespass for the mesne profits, (Benson v. Matsdorf, 2 John. 369; Baron v. Abeel, 3 Johns. 481; Jackson v. Stone, 13 Johns. 540; Leland v. Tousey, 6 Hill 328); and the same principle would apply to all cases, except an ejectment or trespass to try titles. — Van Wyck v. Seward, 1 Edw. Ch. 327. Here, the record shows that Shumake rented from thе Mc-Keens during the pendency of the suit against them to try titles; he was, therefore, privy in estate to them, and bound by the recovery against them. — Howard v. Kennedy, 4 Ala. R. 592.

Judgment reversed, and cause remanded.