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visions of the statute, the plaintiff in ejectment, claiming possession under a patent certificate, whether as purchaser of land that has been publicly offered for sale, or under the pre-emption laws of congress, is not entitled to recover rents and profits for improve ments made by the defendant or those under whom he claims; and any evidence conducing to prove that the improvements were made by the defendant is admissible to defeat the claim for rents and profits. (Rector v. Gainse, 19 Ark. R. 70.)

A sheriff's deed is held to be evidence, under the statate, of the facts recited in it; but if such deed fail to recite all the facts required by the statute, as where it fails to recite the judgment under which the property was sold, it can furnish no evidence of the existence of such facts; and a party claiming under the deed must prove them aliunde in order to sustain his title in an action of ejectment. (Jordan v. Bradshaw, 17 Ark. R. 106. And ride Newton v. The State Bank, 14 ib. 10. Massey v. Gardenhire, 12 ib. 638.)

Finally, in the state of Texas all fictitions proceedings in the action of ejectment are abolished, and the method of trying titles to land or tenements is by action of trespass, wherein the real names of the parties, plaintiff and defendant, are to be used. If the plaintiff in the action obtain a verdict, he may recover in the same action and by the same verdict his damages for mesne profits

. The plaintiff in the action is required to indorse on the original and copy of his petition, that the action is brought as well to try the title as for damages; and the action is tried on its merits con

; formably to the principles of the action of ejectment. The defendant in such action, where he sets up title to the land in dispute, is required to plead the same, and set out the metes, and bounds of what he claims. And where a tenant is sued for lands of which he is in possession, the real owner, or his agent or attorney, may enter himself on the proceedings as the defendant in the suit. The plaintiff is not required to prove an actual trespass by the defendant in the action. And the verdict in the action is not conclusive against the plaintiff, but a new action may be commenced by him for the same lands at any time within one year after the determination of the first one; and the verdict in the second action is conclusive. The defendant in the action may suggest, at any

time before the trial, that he or those under whom he claims have had adverse possession of the lands sued for, in good faith, for one year

next before the commencement of the action, and that he or they have made valuable improvements thereon; and then, if the jury find for the plaintiff, and find the suggestion of the defendant true, they must also assess the value of the improvements, and the matters will be adjusted between the parties in the action. (Paschall's Annotated Dig. arts. 5292–5303.)

A justice of the peace cannot try the title to lánd, and his judgment in such a case has been held to be a nullity. (Hillman v. Baumbach, 21 Tex. R. 205.) The action may be maintained only in a court of record, and then it will be sustained upon an equitable as well as legal title. But the plaintiff must show title in himself at the time of the commencement of the suit. (Browning v. Estis, 3 Tex. R. 462. Neil v. Reese, 5 Tex. R. 30. Howard v. Perry, 7 ib. 265. Miller v. Alexander, 8 ib. 42. Simpson v. McLemon, Ib. 450.)

It has been held that the plaintiff may buy in an outstanding title to the land in question after the commencement of the action to recover it. But he must prove the case he states. (George v. Thomas, 16 Tex. R. 85, 86.)

The action of trespass to try title will not lie in Texas in favor of a mortgagee against the mortgagor. But, where the deed was absolute upon its face, the mortgagee may sue in this action, and frame his petition in the alternative, so as to obtain a judgment of foreclosure, should the defendant prove the defeasance. And, in such a case, where the mortgagee was rightfully in possession, he cannot be ousted by the mortgagor, until he pays the redemption money. (Hannay v. Thompson, 14 Tex. R. 144. Duty v. Graham, 12 ib. 427.)

It has been held that immaterial errors in describing the land will not vitiate the petition in the action of trespass to try title; and where the boundaries are erroneously called, but the calls for certain improvements upon the land were correct, the verdict of the jury in favor of proper identity will not be disturbed. It is held that in such a case it is a question of identity. (Lee v. Salinas, 15 Tex. R. 497. Smith v. Chatham, 14 ib. 327, 328. Rains v. McWills, Ib. 616.)

It seems that the object of the indorsement upon the petition, provided by statute, is to notify the defendant of the nature of the action; and where the charge was trespass quare clausum fregit, and the prayer for the recovery of the land and damages, and the defendant plead title and improvements, the omission of the indorsement was held to be immaterial. (Kolb v. Bankhead, 18 Tex. R. 233.) And it is held that the objection cannot be taken after verdict, nor after a plea of “not guilty" had been filed seven years. (Shannon v. Taylor, 16 Tex. R. 423. Bone T. Walters, 14 ib. 567.)

It has been held that the doctrine of estoppel in pais may be applied to boundaries of land; and the courts of Texas have held that the true rule is as stated by Lord Denman in the case of Pickard v. Sears, 33 English Common Law Reports, 117, viz.: “That where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the time; and the plaintiff in this case might have parted with his interest in the property without any of those formalities that throw technical obstacles in the way of legal evidence." This rule was applied to statements in respect to boundaries. (Love v. Barber, 17 Tex. R. 318.)

A plaintiff is entitled in all cases to a second suit to adjndicate upon the title to the land claimed ; and, if the second suit should be dismissed without a trial, the plaintiff may bring a third suit to try the question. (Allen v. Stephens, 18 Tex. R. 669. Dangerfield v. Paschal, 20 ib. 541.) But the judgment in the action is conclusive against the defendant in a subsequent action for rents and profits, after the judgment and before the execution of pas session. And, the defendant's title having been tried in the first action, it is held that he cannot go behind the judgment and set it up again. Fisk v. Miller, 20 Tex. R. 581. Lewis v. San Antonio, Paschall's Ann. Dig. p. 894, note 1146.)

By a statute of Texas, “all certificates for head-rights, land scrip, bounty warrants, or any other evidence of right to land recognized by the laws of this government, which have been located or surveyed, shall be deemed and held as sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law.” (Paschall's Ann. Dig. art. 5303. Hartley's Dig. art. 3230.) An action arising under this statute may be brought in the courts of Texas, where rights, whether legal or equitable, are disposed of in the same suit. But the supreme court of the United States, having decided, after full considera

tion, that in the courts of the United States suits for the recovery of land can only be maintained upon a legal title, held that a plaintiff in the court below, who had nothing more than an inci. pient equity, could not therefore maintain his action. (Shinburn v. De Cordova, 24 How. U. S. R. 423. And vide Fenn v. Holme, 20 ib. 481.)

In Texas, however, there is a mixed jurisdiction of law and equity, and the right to support trespass to try title there may well exist; but the holder of a mere incipient equity cannot support ejectment upon the common-law side of the circuit court of the United States. Such a right has no standing in a court of law. (Vide Hart v. Turner, 2 Tex. R. 374. Dubois v. Newman, 4 Wash. C. C. R. 76.)

Thus much in respect to the action for the recovery of real property in the several states. The cases in which the action of ejectment will lie in a large number of the states are fully detailed in a previous chapter (ante, ch. 3); and fifty-one pages of this work are devoted to the consideration of the subject of the statutory policy of the several states in respect to landlord and tenant, and the remedy by ejectment in cases of tenancies under the statutes of the several states. (Ante, chs. 16, 17, 18.) And here the discussion of the principles and practice of the action of ejectment will be concluded, reserving the examination of the resulting action for mesne profits for a subsequent chapter.

CHAPTER XLVI.

THE ACTION FOR MESNE PROFITS — THE PARTIES TO THE ACTION — THE

PLEADINGS IN THE ACTION -THE DAMAGES IN THE ACTION.

The mode and method of recovering mesne profits have been dwelt upon more or less, either directly or indirectly, in the chapters herein concerning the action for the recovery of real property in the several states; but it is necessary to devote some examination to the subject in addition to what has already been said. In some of the states the statute provides for the recovery of the mesne profits, with the ordinary damages, in the same action in which the land itself is recovered, and the action for the recovery of the land is made a bar to any other action or proceeding to recover mesne profits. But, in most cases, even though mesne profits may be recovered in the same action in which the land is recovered, the common-law action for mesne profits may be maintained after the action for the recovery of the land has been terminated in favor of the plaintiff.

In the common-law action of ejectment no provisions exist by which the jury are enabled to inquire into the actual damages, and include in their verdict the real injury sustained by the plaintiff for the wrongful withholding of the possession of his land by the defendant; but, in lieu of this, a remedy has been provided which is far more comprehensive and efficacious in its nature than could be obtained by any adaptation to this object of the action of ejectment itself. This remedy is termed an action for mesne profits, or the action of trespass for mesne profits; and the rules, principles and practice applicable to this action are in many respects peculiar and exclusive.

The action for mesne profits cannot be maintained until there is a recovery of the land by the plaintiff in an action of ejectment. (Burton v. Austin, 4 Vt. R. 105. Smith v. Benson, 9 ib. 138.) But, after recovery in ejectment, even by default, against the casual ejector, the lessor of the plaintiff may have his action for the mesne profits against the tenant, both for the use of the land and for the costs of the ejectment. (Baron v. Abeel, 3 Johns. R. 481. Brown's Lessee v. Galloway, 1 Peter's C. C. R. 291.) And the recovery of nominal damages in the ejectment suit is no bar to the action for mesne profits. (Van Allen v. Rogers, 1 Johas Cases, 281.)

By the present practice in the state of New York, the remedy for mesne profits, after recovery in ejectment, is by prosecuted by summons and complaint. The principles of the provisions of the Revised Statutes in relation to the recovery mesne profits remain in force, and are to be applied to an action therefor after judgment in ejectment, though in form like the old action of trespass. (Holmes, Administrator, v. Davis, 19 N. Y. R. 488. Same Case, 21 Barb. R. 265.)

When a defendant in ejectment is evicted, and afterward restored to possession by an order quashing the habere facias and awarding a writ of restitution, and the writ of restitntion itself is afterward quashed, the defendant is liable to an action for mesne

an action

of

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