CHAPTER IV. Rule of Damages in actions brought to recover the possession of Real Estate-In Real Actions generally-Ejectment-Trespass for mesne Profits-Dower. HAVING thus disposed of nominal and of remote or consequential damages, we proceed to consider the rules which govern the measure of compensation in the various forms of common law procedure. And first, of those actions which relate to the possession of real estate. Five of the first chapters of Mr. Sayer's work on this subject, to which I have already referred,* are devoted to a consideration of the law of damages in the actions of Assize of novel disseisin, Entry sur novel disseisin, Assize of mort d'ancestor, Cosinage, Aiel and Besaiel. Many of the forms of real actions were introduced into America from the mother country,† and some still survive; but the particular actions above mentioned have been rarely, if ever, employed in the Union, and they were in England absolutely abolished by the statute 3 & 4 Will. IV., c. 27, § 36; for the "limitation of actions," which swept away, indiscriminately, between fifty and sixty species of proceedings, leaving as the only real or mixed actions, a writ of dower, dower unde nihil habet, quare impedit, and ejectment.‡ Repeated statutory changes have also been made in the various States on this same subject, the general result of which has been that the actions of ejectment or trespass to try titles and dower, are the only real or mixed actions now in extensive use in the Union. The action of quare impedit, relating to a *Introduction, 1. As to the extent to which the real actions were adopted by us, see Kent's Commentaries, Vol. iv., 5th edit., 70, in notis. And see an article by Judge Jackson, American Jurist, Vol. ii., 65, for July, 1829, to the same point. Warren's Law Studies, first edit., 15 and 16, in notis. species of property-advowson-which never existed among us, is wholly a stranger to American jurisprudence. There is still another form of action- Waste-by which the possession of real estate is sometimes changed, and which may, perhaps, strictly belong to this division of the subject; but I have thought that it might be more conveniently and appropriately discussed under the head of trespasses, nuisances, and other interferences with the occupation or enjoyment of real property. The actions above named are the usual modes of procedure with us, by which the possession of real estate is now altered. It is necessary briefly to allude to the general principles regulating damages in real actions as they once existed, but the weeping changes which have been effected in the original structure of English jurisprudence, will make this discussion a very cursory one, and we shall then examine the law in regard to the substitutes which have now taken their places ejectment and dower. In real actions, properly speaking, damages, were not originally given at common law;* "for it is of the essence of a real action, that only a real thing can be recovered therein; whenever damages, which are a pecuniary recompense, and consequently a personal thing, are recoverable in the same action, the action becomes mixed."+ By the statutes of Merton, Marlbridge and Gloucester, however,+ damages were given in the principal real actions. In * Sayer on Damages, 5. + Blackstone says, that in the assize of novel disseisin, if the recognitors find the seisin and disseisin, the demandant shall recover his seisin and damages for the injury sustained, "being the only case in which damages were recoverable in any possessory action at the common law, the tenant being in all other cases allowed to retain the intermediate profits of the land to enable him to perform the feodal services."-Com., Book III., Ch. 10, 187 and 188. * * So in Pilfold's case, Rep. X., 115, it is said, "in personal actions they shall declare to damage, because they shall recover damages only for the wrong done before the writ brought, and shall recover no damages for any done pending the writ; but in real actions the demandant shall never count to damages, because he is to recover damages ponding the writ. At the common law, before the statute of Gloucester, (Anno. 6, E. I., c. I.,) a man should not recover damages in any real action, as in dower before the statute of Merton, c. I., nor in Aiel, Mordancestor before the said statute of Gloucester, but in actions mixed, as in assize, entry in the nature of assize or in personal actions, as trespass quare clausum fregit, of goods taken away, also, Roscoe on Real Actions, I., 807. 20 Hen., III., c. 8. 52 Hen., III., c. 16, and 6 Edw., I., Anno 1278. &c." See, those actions where no damages were directly given, and in which, pending the suit, the defendant might impair the value of the property, the ancient writ of estrepement* gave indirect relief. It lay properly in real actions, where the plaintiff could not recover damages by his suit, and, as it were, supplied damages.† In regard to property in advowsons, it may be briefly noticed that no damages were recoverable at the common law in an assize of darrein presentment, nor in an action of quare impedit. And the action of darrein presentment was abolished in England by the statute of limitation of actions, to which we have already referred. By the statute of 2 West., c. 5, it was provided, in writs of quare impedit and darrein presentment, if a disturbance of six months took place, that damage should be awarded to two years' value of the church; if six months did not pass, but the presentment were deraigned, (i.e., proved) within that time, damages should be awarded to half a year's value of the church. If a more particular view of this branch of our subject is desired by the student, he will find it in those English treatises which are devoted to this particular matter. The scope of this work does not allow a further examination of it. We come, then, to consider the law of damages in the actions relating to real property, as in general application in the Union; and first, of Ejectment. "Whilst the action of ejectment remained in its original state, and the ancient practice prevailed, the measure of damages given by the jury when the plaintiff recovered his term were the profits of the land accruing during the tortious holding of the defendant. But as upon the introduction of the Estrepamentum-from the Fr. estropier-mutilare. + Termes de la ley, in voc.; Tomlin's Law Dictionary in voc. In New York, by Rev. Stat., Vol. ii., 260, 2d edit., § 18, the benefit of this writ is given by a provision which, where an action is brought for the recovery of land, or the possession thereof, authorizes the court in which the suit is pending, to make an order restraining the defendant from the commission of waste. Sayer, 35. Adams on Ejectment, by Tillinghast, 879. "Before the time of Henry VII.," said Wilmot, C. J., in Goodtitle vs. Tombs, 8 Wils., 118, "plaintiffs in ejectment did not recover the term, but until about that time the mesne profits were the measure of damages. * * * By the old law and practice, in an action of ejectment, as I before said, you recovered nothing but damages, the measure whereof was the mesne profits." modern system, the proceedings became altogether fictitious, and the plaintiff merely nominal, the damages assessed became nominal also, and they have not, since that time, included the injury sustained by the claimant from the loss of his posses sion." And thus it has been decided in New York,* that a recovery of nominal damages in the action of ejectment is no bar to an action for the mesne profits, and that it is unnecessary to enter a remittitur damna.† In Pennsylvania, it has been decided that the damages in ejectment, being merely nominal, a verdict, finding for the plaintiff without assessing damages, is not thereby vitiated ;+ and the same would probably be the rule in New York. In some of the States, the course of proceedings is, however, to recover the mesne profits in the action of ejectment, or in an action of trespass to try the title; and in those states the rules that we shall proceed to give, in regard to the action of trespass for mesne profits, will, it is to be supposed, govern in the ejectment suit, or in the action of trespass.§ * Van Alen vs. Rogers, 1 J. Cas., 281. In the same state, by a statutory provision, (Rev. Stat., II., 231, 2d edit., § 6,) the real plaintiff is now obliged to bring the suit against a real defendant; but the dam-ages are still merely nominal, subject to the exception hereafter noticed. The seventh section of the same statute requires the plaintiff to aver, in his declaration, that the defendant "unlawfully withholds from the plaintiff the possession of the premises, to his damage, any nominal sum the plaintiff shall think proper to state." In Pennsylvania, a plaintiff in ejectment, under the Acts of 1806 and 1807, may recover damages and costs, although he has conveyed the title to a third person, pending the suit. -Murray vs. Garretson, 4 S. & R., 180. The New York statute (Revised Statutes, II., 2d edit., 236, sec. 44, et seq.,) has also prescribed the mode of recovering mesne profits, by a suggestion on the record, the action of trespass for mesne profits, as we shall see hereafter, being retained where the defendant in the ejectment suit is a tenant or mere occupant, claiming title under some other person, who defends the suit in his name. See Leland vs. Tousey, 6 Hill, 328. The Code has made little change in regard to Ejectment. Rogers vs. Wing, 5 Pr. R., 50. Harvey vs. Snow, 1 Yeates' Rep., 156. Gough's Lessee vs. Rinehart, cited 1 Yeates' Rep., 157. § Starr vs. Pease, 8 Conn. R., 541. So in Pennsylvania, if the plaintiff chooses to proceed for mesne profits in ejectment at common law, he may do so on giving notice to the defendant of his intentions. Battin vs. Bigelow, 1 Peters' C. C. Rep., 452. The mesne profits may be recovered in ejectment at common law in some of the state courts, by way of damages; see Boyd's Lessee vs. Cowan, 4 Dall., 138; and Dixon's Lessee es. Hosack, Thorpe vs. Bell, Yeates vs. Stewart, cited S. C. In this case the practice of blending the two actions is ably vindicated by McKean, C. J. He says, "I shall now briefly consider the argumentum ab inconvenienti which refers but to a single in The only case in which actual damages can be recovered in the ejectment suit itself is that where the plaintiff's title expires pending the action. So in New York,* where the plaintiff's life estate had ter stance, to wit, the difficulty the jury may labor under in deciding on the titles of the parties to the possession, and at the same time, in fixing the value of the mesne profits if the verdict shall be for the plaintiff. There can be no great hardship in this. In actions of waste, dowry, assize, and all others where the thing itself, as well as the damages is recovered, the jury are liable to the same inconvenience, nor can I perceive any great perplexity that can arise in determining the rent or annual value of a house or parcel of land, where complete evidence is given of it. It appears to me that the inconvenience or hardship is the other way. After a person has been unlawfully kept out of his house or land for a series of years, and undergone great trouble and expense in recovering a judgment for them, to give him the possession merely, without any satisfaction for the use and occupation pending the action, does not seem to be complete justice. To tell him 'you must sue for the mesne profits in a new action, fee counsel, attend the courts, produce witnesses, and have a new trial for the sole purpose of fixing their value,' is certainly imposing an improper burthen upon him if justice can be had in a more speedy, cheap and easy way. Taking a verdict for the amount of the mesne profits as well as on the title in the ejectment, will prevent this circuity, delay and expense, and I believe it to be equally beneficial for the defendant; for if on the trial he shows a reasonable ground for controverting the plaintiff's claim, or a specious title in himself, a jury would be inclined to give but very moderate damages against him, (of which the jury in the action for the mesne profits can have no consideration, as the title cannot in that action be again gone into,) and he would certainly be saved the costs and expenses of the second suit." See, also, Joan et al. vs. Shield's Lessee, 8 Har. & M'II. R., 7; Gore's Lessee vs. Worthington, 3 Har. & M’H. 96; Little vs. Meacham, 1 Tyler's Rep., 488; Longstreet vs. Ketchum, 1 Coxe's Rep., 170. In Denn ex dem., Delatouche vs. Chubb, 1 Coxe Rep., 466, (New Jersey,) it was ruled in ejectment that the mesne profits might be recovered, and that in assessing them the jury might include all the plaintiff's reasonable and necessary expenses, such as a fee to counsel. An action of trespass is a proper mode of recovering mesne profits after a recovery in ejectment in Pennsylvania, under the acts of 21st March, 1806, and 13th April, 1807. Osbourne vs. Osbourne, 11 Serg. & R., 55. In Vermont, also, the two actions have been blended. Walker vs. Hitchcock, 19 Verm., 634; Beach vs. Beach, 20 Verm., 83; Edgerton vs. Clark, 20 Verm., 264. The object of the action of ejectment, in that State, is not merely to recover possession, but also to settle the title and establish the right of property. Marvin vs. Dennison, 20 Verm., 662. But in such action of ejectment the plaintiff cannot, with a view to increase his claim for mesne profits, give evidence of wanton acts of trespass, injuring the intrinsic value of the premises. Walker vs. Hitchcock, 19 Verm., 634. In Alabama the action of trespass to try titles has been substituted for the actions of ejectment and trespass for mesne profits, and performs the office of both; and as in the action for mesne profits, the plaintiff is entitled to recover the damages he has sustained by being kept out of possession; and these are never increased or diminished by the profits acquired by the defendant from his occupancy. Bullock vs. Wilson, 3 Porter's Rep., 382. So in South Carolina, the mesne profits are recoverable in an action of trespass to try titles, and after that action is had no separate action lies for the recovery of mesne profits. Sumter vs. Lehre, 1 Treadway's Com. Rep., 102. In Massachusetts, by statute it is provided, that if the defendant recovers judgment in a writ of entry, he shall also, in the same action, recover damages for the rents and profits of the premises. Rev. St., ch. 101, 14. Washington Bank vs. Brown, 2 Met., 293. * Jackson ex dem. Henderson vs. Davenport, 18 J. R., 295 and 302. This was |