Poston v. Henry, 33 N.C. 301, 11 Ired. 301 (1850)

Aug. 1850 · Supreme Court of North Carolina

33 N.C. 301, 11 Ired. 301

ROBERT POSTON vs. ROBERT HENRY.

A recovery in ejectment will not support an action for the mesne profits¡ unless the lessor has regained the possession, either by being put in under prooess, or by being let in.

Where-a recovery in ejectment is upon the demise of one of several lessors, putting another lessor in possession does not entitle the lessor, upon whose demise the recovery was effected, to an action for the mesne profits.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term in July 1850, his Honor Judge Battle presiding.

The action is trespass for mesne profits, Plea, not guilty. On the trial the plaintiff gave in evidence the record of a recovery in ejectment. The declaration contained three counts, upon the several demises of George W. Jones, Rebecca Poston,and the present plaintiff,Rob* ert Poston. It was served upon Evans, as the tenant in possession; but, upon the affidavit of one Deaver and a motion in the name of the present defendant, he, .Henry, was admitted a defendant and pleaded to the action. At the trial, the issue, on the demise of Robert Poston only, was submitted to the jury, and on it there was a verdict for the plaintiff, and judgment was entered thereon in July 1848. In August 1S48, an habere facias possessionem issued, which recited the recovery of the premises by John Doe on the demise of Robert Poston, and commanded the sheriff to put the said party, plaintiff, or his agent, into sole possession, &c. Under it the sheriff put in George W. Jones in August 1S4S, and this suit was brought about a month afterwards. Upon those facts, the counsel for the defendant took several exceptions ; and among them was one, that the plaintiff could not maintain this action, because it did not appear that he had entered, after the recovery in ejectment. It was overruled, and the plaintiff had a verdict and judgment, and the defendant appealed.

N. W. Woodjin, for the plaintiff.

J, Baxter, Henry and Gaither, for the defendant.

Ruffin, C. J.

The Court thinks the objection good.— A recovery in ejectment will not support an action for mesne profits; for it is trespass for an injury to the possession, and, therefore.it is necessary the plaintiff should show, that he had regained the possession, either by being put in upon process, or let in. In this case, that is not shown. We cannot conjecture, why the ejectment was tried as it was. Rut so it is, that the verdict and judgment are on the count on Robert Poston’s demise, and the writ of possession accords with them. In fact, however, Robert Poston has never been in under those proceedings; and, without further evidence of the connection between that person and Jones, the Court cannot presume that Jones was the agent of Poston to receive the possession. • It is true, they were both lessors of the plaintiff in ejectment. But that was by separate demises of the whole and imports several titles; so that it cannot be seen, that the possession of one of them is that of the other, and consequently the present action cannot be maintained, and it becomes unnecessary to consider the other points made.

Per Curiam. Judgment reversed and venire de nouo.