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and judgment rendered thereon, no new ejectment can be brought. But where there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment may be brought, and the verdict and judgment thereon will be final and conclusive, and bar the right; but where the action of ejectment is brought to enforce the payment of purchase-money, wherein time becomes of essence in the finding of the jury, or in a judgment by confession, by fixing the time of such payment, one verdict and judginent thereon, unreversed, is conclusive. (Purdon's Dig. 366, 367,

. SS 14, 15, 16.)

In all legal actions of ejectment, wherein there has been one verdict and final judgment, or verdict and judgment against verdict and judgment, between the same parties, and the party or parties, his or their heirs, or assigns, remaining in possession of the premises, the title to which is in controversy, shall be desirous of settling the same, it is made lawful for such party or parties so in possession to enter a rule upon the adverse party claiming title to such premises, requiring him or them to commence his or their second or third action of ejectment, as the case may be, within two years thereafter, or show cause why the same cannot be so brought; which rule must be entered of record in the case last tried between the parties, and served and returned by the sheriff as writs of summons are served and returned. And if the party or parties upon whom the rule shall be served shall fail to appear and show cause why the action should not be brought within two years after such service, it is made the duty of the court to enter judgment, and make the rule absolute against the party so failing; which judgment will be final and conclusive between the parties, their heirs and assigns, in the same manner as a second or third verdict and judgment between the same parties would be if regularly rendered upon trial. (Laws of 1864, No. 961.)

It has been held that one trial and judgment in an ejectment to enforce or rescind a contract for the sale of land is conclusive of the rights of the parties, whether the judgment was entered in the verdict of a jury or on an award of arbitrators. The efficacy of the proceeding is in the judgment, and not in the mode of arriving at it. (Seitzinger v. Ridgway, 9 Watts' R. 496. Aurick v. Oyler, 25 Penn. R. 506 ) Though one verdict and judgment in ejectment upon an equitable title is conclusive between the parties, and a bar

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to any subsequent ejectment for the same land, yet, in order to have this effect, the judgment upon the verdict must have been regularly entered on the record; it is not enough that the jury fee was paid after verdict, and an entry thereof indexed in the lien docket. The lien docket is not the record of judgments, but only their essential index; and the entry in the lien docket does not make the judgment, but only refers to one supposed to be already made. (Ferguson v. Staver, 40 Penn. R. 213.) And the rule that one verdict and judgment on an equitable title is conclusive between the parties, and a bar to any subsequent ejectment for the same land, applies only where the action is to be regarded as a bill in equity and not as a possessory ejectment at common law. (Tay. lor v. Abbott, 41 Penn. R. 352.) So also, in order to give the judg. ment the effect to conclude the parties, it must appear distinctly that the equitable title was directly in issue and decided upon. (Meyers v. Hill, 46 Penn. R. 9.)

In actions of ejectment, where the defendant or defendants shall have neglected or refused to appear and plead on or before the next terin after that to which the original process was made returnable, or having appeared, and then withdrawn such appearance, if the process shall have been duly served, the court may direct a plea to be entered for the defendant or defendants, and the case will proceed to trial and judgment as in other cases; provided the writ shall have been served on the party actually claiming title. And in all cases of eviction, after return of an execution, the court is required to award alias and pluries writs of habere facias possessionem. (Purdon's Dig. 367, SS 17, 19.)

In all actions of ejectment against two or more persons, any of the defendants will be competent as a witness for either plaintiff or defendant as effectually as if not made a party to the record; provided that it shall appear to the court, upon the trial, that the party so offered as a witness has disclaimed, upon the record, all title to the premises in controversy at the time of the action brought, and paid into court the costs already accrued, or given security for the payment thereof, at the discretion of the court. (Laws of 1867, No. 30.)

In the statutory action of ejectment in Pennsylvania, mesne profits may be recovered. . (Dawson v. McGill, 4 Wharton's R. 230.) But it is held that the legal right of action for the mesne profits of lands, which accrued during the pendency of an action

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of ejectment, is lost by the death of the defendant after the recovery in ejectment had, and that the action will not lie against his personal representatives. Although the legal right of action for the recovery of the mesne profits of lands, which accrued during the pendency of an action of ejectment, survives, where the plaintiff dies after a recovery is had in the action, and the -action for such mesne profits is properly brought, in the name of his heir, at common law. (Means v. Presbyterian Church, 3 Penn. R. 93. Harper v. Whitaker, 5 Watts' R. 474. Bard v. Nevin, 9 ib. 328.)

A defendant who quits the premises during suit is not liable for mesne profits accrued afterward. (Mitchell v. Frudley, 10 Penn. R. 198.) And, in trespass for mesne profits after judgment in ejectment, the plaintiff can recover only for what accrued within six years previous to the commencement of the action; for all rents, issues and profits accruing previously thereto, the statute of limitations is a bar. (Hill v. Meyers, 46 Penn. R. 15.)

After judgment in ejectment and writs of habere facias possessionem issued, it is the duty of the sheriff to execute the writs by ejecting the defendant with his family; and the wife cannnot prevent it by setting up title in herself, as it was the duty of the husband to have defended his possession upon her title. (Johnson v. Fullerton, 44 Penn. R. 466.)

It may be added that the practice in bringing the action to trial, and bringing writ of error in the action of ejectment, is the same as in other actions. On error, if the testimony is not brought up by bill of exceptions, it should be certified to be correct by the judge who tried the cause; the practice of counsel making different presentations of the evidence, is held to be erroneous. (Burford v. McCue, 53 Penn. R. 427.)

In the state of Delaware, the only provision of the statute in respect to the action to recover real property is, that the legal title to lands, or to any tenements whereon entry can be made, may be tried in an action of ejectment; and that no objection shall be made to the form of action, or to the right of the lessor of the plaintiff to make the demise, if he could recover the premises in any form of action. The statute further provides that if a tenant, holding under a demise, be served with a declaration in ejectment, his landlord, upon entering into the common rule, shall be admitted defendant with the tenant in such ejectment. If the tenant refuse to appear, and the landlord apply to be admitted, judgment will be entered against the casual ejector, with stay of execution subject to the order of the court; and the landlord, on entering into the common rule, and admitting on record that he is and, at the time of the commencing the action, was in possession of the premises mentioned in the declaration, or any described part thereof for which he defends, must be admitted defendant. (Rev. Code, 1852, ch. 119.)

It would seem that the action to recover the possession of real property in Delaware, is the common law action of ejectment, and that it is prosecuted, in the main, according to the form of the common law. It has been held in conformity with the rule at common law, that the demise must always be laid in the declaration after the title of the lessor of the plaintiff accrued. (Doe T. Roe, 1 Harr. R. 464.) So also the courts of Delaware hold in accordance with the general rule at common law, that a recovery in ejectment is not conclusive in any other ejectment; and it was held that the rule would apply, though the recovery was by confession of judgment. (Hawkins' Lessee v. Hays, 3 Harr. R. 489.) But it is held that an award upon a reference in an action of ejectment is conclusive, and estops the plaintiff from bringing another action. (Porter's Lessee v. Matthews, 2 Harr. R. 30.)

It has been ruled that the plaintiff, in an action of ejectment, cannot go out of his plot to prove the defendant's possession of other lands, for the reason that the plot must be regarded notice of the lands in controversy. (Andrews' Lessee v. Stearn, 2 Harr. R. 50.)

So also it has been decided that if a party, after suffering judg. ment by default in an action of ejectment, relinquishes or abandons the possession of the premises, no length of possession given to it will avail him in a second action of ejectment against him for the same premises, although the plaintiff did not enter into possession on his abandonment of it. (Doe v. Stephens, 1 Houston's R. 31.)

Although the effect of a recovery in an action of ejeçtment is not conclusive as to title; yet the courts of Delaware hold that it is evidence of the right of possession in the party recovering it, at the time of the recovery. And it was held in the same case, that a recital in a deed that the grantor had taken in the convey. ance of the land to him, only fourteen acres, and no more, of the premises in dispute, is evidence of itself of the fact admitted in

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the recital, and as such concludes the parties to the deed, and all deriving title under it, from claiming any new land. (Doe v. Howell, 1 Houston's R. 178.) And it has also been declared that a judgment by default in a former action of ejectment between the same parties, legally establishes the right of the plaintiff to the possession of the premises in a second action of ejectment between them for the same premises; but unless it is followed by an entry into possession, either by writ of possession or without writ, but with the consent or by the surrender or abandonment of the defendant, that such judgment can have no effect on the defendant's possession, or upon the question of title, founded upon

his part, on an actual and uninterrupted adverse possession of twenty years' continuance. (Doe v. Stevens, 1 Houston's R. 240.) The cases in which the action of ejectment may be brought in the state of Delaware, have been stated in a previous chapter. (Ante,

ch. 3.)

CHAPTER XXXIX.

THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL

STATES - THE PRACTICE IN OHIO, MICHIGAN, INDIANA AND ILLINOIS.

In the state of Ohio the action to recover real property is called, as often as otherwise, by the name of ejectment, although, by the code of practice now in force in the state, the distinction between actions at law and suits in equity, and the forms of all such actions and suits formerly existing there, are abolished; and in their place they have but one form of action, called a civil action; and, as a general rnle, every action must be prosecuted in the name of the real party in interest. The action for the recovery of real property, or of an estate or interest therein, is reqạired to be brought in the county where the land in dispute is situated, except that if the propersy be an entire tract and situated in two or more counties, the action to recover the possession thereof may be brought in either of such counties; but if lands for which the action is brought to recover the possession consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions brought in the counties where they are situated. (2 R. S. ch. 87, tit. 1, $ 3, tit. 4, SS 45, 46.)

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