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years after the first judgment in the action, and not within three years after the affirmance of that judgment in the court of last resort. It has been held that this provision applies to actions

. under the Code, but it is essential to the relief that there should have been a trial by jury and verdict rendered, upon which the judgment was entered, and it is incontrovertible that, by the prorisions of the statute, the application for the new trial, and offer to pay costs, must be made within three years after the judgment is rendered upon the verdict. The court in which the action is pending can only grant the relief contemplated by the provision of the statute, when the application is made within that time. (Chautauqua County Bank v. White, 23 N. Y. R. 347. And vide Holmes v. Davis, 21 Barb. R. 265. Lanyv. Ropke, 1 Duer's R. 701.)

An order of the supreme court, vacating a judgment in an action to recover the possession of land, and granting a new trial upon payment of such judgment, under the provisions of the Revised Statutes respecting new trials in ejectment, is not the subject of appeal to the court of appeals. (Evans v. Millard, 16 N. Y. R. 619.) And when a new trial is granted on motion of the plaintiff in ejectment, the court will, at the same time, if reasonable grounds be shown, give him leave to amend his complaint, by inserting the names of additional plaintiffs, with proper counts; and this whether the new trial be granted under the statute, or for cause. (Martin v. Lake, 3 Hill's R. 475.)

A judgment in ejectment rendered by default is conclusive, from and after three years froin the time of docketing the same, upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. But within five years after the docketing of such judgment, on the application of the defendant, his heirs or assigns, and apon payment of all costs and damages recovered thereby, the court may vacate such judgment and grant a new trial, if such court shall be satisfied that justice will be promoted, and the rights of the parties more satisfactorily ascertained and established. But if the defendant in the action, at the time of the docketing of the judgment by default, be either within the age of twenty-one years, or insane, or imprisoned on any criminal charge, or in execution upon some conviction of a criminal offense, for any term less than for life, or a married woman, the time during which such disability shall continue will not be deemed any portion of the said three years; but any such person

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may bring an action for the recovery of such premises after that time, and within three years after such disability shall be removed, but not after that period. (2 Stat. at Large, 318, SS 38, 39.)

The provisions of the Revised Statutes in respect to the force and effect of judgments in the action of ejectment, and the granting of new trials therein, are not repealed by the Code, and are, consequently, still in force. (Thompson v. Sherrard, 22 How. Pr.

. R. 155, 157.) When the judgment in ejectment is rendered upon the verdict of a jury, or a report of a referee upon the facts, or upon a decision of a single judge upon the facts, the court must vacate the same and grant a new trial upon the proper application, and upon payment of the costs and damages; but when the judgment is rendered by default, the court may vacate the same and grant a new trial, if the court is satisfied that justice will be promoted thereby; the new trial in the former case is pretty much a matter of course, while in the latter it is a matter of sound discretion. If the person entitled to commence such action of ejectment shall die during the continuance of any disability before specified, and no determination or judgment be had of or upon the title, right or action so to him accrned, his heirs may commence such action after the time limited for that purpose, and within three years after his death. If the plaintiff shall have taken possession of the premises, by virtue of any recovery in ejectment, such possession will not in any way be affected by the vacating of any judgment, as before specified; and, if the defendant recover in any new trial authorized, he will be entitled to a writ of in the same manner as if he was plaintiff. Upon any new trial granted, the defendant may show any matters in bar of a recovery which he might show to entitle him to the possession of the premises if he were plaintiff in the action. (2 Stat. at Large, 318, 319, SS 40, 41, 42.)

The provision of the statute entitling the defendant in ejectment to a writ of possession if he recover in any new trial granted him under the 37th section of the statute hereinbefore stated, and possession has been taken in virtue of the former recovery, is held to apply to all cases where he obtains a regular judgment in his favor, whether upon a trial or otherwise. Should the plaintiff, after the new trial granted in such case, enter and serve a rule for discontinuance, and pay the costs of the suit, probably the court would allow the defendant to proceed to judgment as a means of regain

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possession

ing possession, or award a writ of possession upon the equity of the statute without a judgment. (Huntington v. Forkson, 7 Hill's R. 195.)

The plaintiff recovering judgment in ejectment in any case may recover damages against the defendant for the rents and profits of the premises recovered. (2 Stat. at Large, 319, § 43.) And, by the Code, the plaintiff may unite in the same complaint several causes of action to recover real property, with or without damages for the withholding thereof and the rents and profits of the same. (Code, g 167, sub. 5.) So, as a matter of course, the judgment in such a case may be in conformity with the provisions of the statute above stated. The statutes of New York provide for the recovery

. of mesne profits in the action of ejectment, but the proceedings for that purpose will be more appropriately explained in a subsequent chapter. The cases in which the action of ejectment will lie in the state of New York are given in a previous chapter, and need not be repeated here. (Vide ante, ch. 3.)

It may not be amiss to state that the wife of a mortgagor of land for the purchase-money, whether she has or has not joined in the mortgage, has an inchoate right of dower in the equity of redemption which is not affected by a foreclosure to which she is not a party. (Mills v. Van Voorhies, 20 N. Y. R. 412.) But in such a case, however, the remedy of the wife, after the death of her husband, is not by ejectment; she must bring her action to redeem in a court of equity.

CHAPTER XXXVII.

THE ACTION TO RECOVER REAL PROPERTY IN THE SEVERAL STATES — THE

PRACTICE IN THE NEW ENGLAND STATES,

In the state of Maine it is provided by statute that any estate of freehold in fee simple, fee tail, for life, or any term of years, may be recovered by a writ of entry; and such writs must be served by attachment and suminons, or copy of the writ, on the defendant; but if he is not in possession, the officer must give the tenant in hand, or leave at his place of last and usual abode, an attested copy of the writ; and if the defendant is not an inhabitant of the

state, the service on the tenant is made sufficient notice to the defendant, or the court may order further notice.

The demandant is required to declare on his seisin within twenty years then last past, without naming any particular day, or averring a taking of the profits, and allege a disseisin by the tenant. He must set forth the estate he claims in the premises, whether in fee simple, fee tail, for life, or for years; and if for life, . then whether for his own life or that of another; but he need not state in the writ the origin of his title, or the deduction of it to himself; but, on application of the tenant, the court may direct the demandant to file an informal statement of his title, and its origin.

The demandant is not required to prove an actual entry under his title; but proof that he is entitled to such an estate in the premises, as he claims, and that he has a right of entry therein,.is sufficient proof of his seisin.

T'he action cannot be maintained, unless, at the time of commencing it, the demandant had a right of entry; and no descent or discontinuance can defeat any right of entry for the recovery of real estate.

Every person alleged to be in possession of the premises demanded in the writ, claiming any freehold therein, may be considered a disseisin for the purpose of trying the right; but the defendant may plead in abatement, but not in bar, that he is not tenant of the freehold, or by a brief statement under the general issue, filed within the time allowed for pleas in abatement, unless by leave of the court, the time thereafter is enlarged; and he may show that he was not in possession of the premises when the action was commenced, and disclaim any right, title or interest therein, and proof of such fact will defeat the action; and if he claimed, or was in possession of only a part of the premises, when the action was commenced, he must describe such part in a statement, signed by him or his attorney, and filed in the case, and may disclaim the residue; and if the facts contained in such statement are proved on trial, the demandant can recover judgment for no more than

such part.

If a person in possession has actually ousted the demandant, or withheld the possession, he may, at the demandant's election, be considered a disseisin for the purpose of trying the right, though he claims an estate therein less than a freehold.

In the trial upon the writ, on the general issue, if the demandant proves that he is entitled to such estate in the premises as he has alleged, and had a right of entry therein when he commenced his action, he may recover the premises, unless the tenant proves a þetter title in himself.

Persons claiming as tenants in common, joint tenants, or coparceners, may all, or any two or more, join in a suit for recovery of lands, or may sue alone. The demandant may recover a specified part or undivided portion of the premises to which he proves a title, though less than he demanded.

When a demandant recovers judgment in a writ of entry, he may recover damages for the rents and profits of the premises from the time his title accrued, subject to certain limitations specified, and also for any destruction or waste of the buildings or other property, for which the tenant is by law answerable. The tenant is not liable, however, for the rents and profits of the premises for more than six years, nor for waste or other damages committed before that time, unless the rents and profits are allowed in set-off to his claim for improvements. Nothing, however, contained in the statute, will prevent the defendant from maintaining an action for mesne profits, or for damage to the premises, against any person except the tenant, in a writ of entry, who has had possession of the premises, or is otherwise liable to such action.

The statute provides that no real action shall abate by the reason of the death or intermarriage of either party, after its entry in court; but the court must proceed to try and determine the action, after such notice as the court orders has been duly served upon all interested in his estate, personally, or by publication in some newspaper.

If the demandant recover judgment in the cause, the court may order one or more writs of possession to issue, as are necessary; and a writ of possession may issue, and judgment will be conclusive against all such as have been so notified, whether they appeared and defended or not; and costs will be ordered to the prevailing party.

When the demanded premises had been in the actual possession of the tenant, or those under whom he claims, for six successive years or more before the commencement of the action, the tenant will be allowed for his betterments. In the action to recover pos

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