Jackson v. Stone — 13 Johns. 447

Majority

p. 447

James Jackson against Stone.

Headnote

)hY|Sen?yof *?ect®c""" defendant'gives up the poss?3_ person” LÍaS plaintiff recovers judgment, . . such third person is liable for the mtsna profits; the repo very in ejectment is conclusive evidence against him, and he canned set up a title in himself as a bar.

THIS was an action of trespass, iormesne profits, which was tried before Mr. Justice Platt, at the Greene circuit, in Sepfemher 1 81 T lemotr, 1010.

The plaintiff, in this suit, commenced two actions of ejectment, in 1810, on the demise of Joseph Atwood, against Samuel

p. 448

Baldwin and Benjamin Baldwin, for lands in Windham, in,: the couniy 0f Greene, in which judgments were recovered, in October term, 1813, .whereon writs of possession were issued,; which were executed in December following. Previously, however, .to these judgments being obtained, the defendant had purchased from one Scott about 20 acres of the premises, for which he had received a deed in fee, with warranty,1 and called Upon the Baldwins to deliver to him the possession of the land contained in his deed, which they agreed to do, on; his' allowing them the appraised value of their improvements; they were appraised, the defendant not being present, at 140 dollars, and the Baldwins abandoned the possession ■ of about 20 acres to him, and remained in possession of the residue until they .were; turned out by the writs of possession before mentioned. The defendant, oft this trial, showed a perfect, title to. the premises Which he claimed. t , ;

A verdict was found for the plaintiff, subject to the opinion of the court on á casé to be made, which was now submitted- to the court without argument.

The defendant, ás respecté' the title to the premises, stands in the same situation as the Baldwins, from whom he took the possession of the parcel of land,, for which the action of ejectment was brought, The defendant in an action of ejec tment cannot,, by giving up, the possession to a third person, after the commencement of the suit, defeat the effect of the recovery. It,is. perfectly well settled that a recovery In ejectment,: as far as respects the right to mesne profits, is conclusive of the title, as to the land possessed by the defendant when the action was brought, into whose hands soever it may subsequently pass, by transmutation Of the possession from the defendant in ejectment.

The plaintiff must have-judgment.