Opinion
(December Term, 1853.)
Where the plaintiff, in ejectment, after recovering in that action, fails to take actual possession of the premises recovered, although the defendant has left them, cannot sustain an action for the mesne profits.
(COBLE v. WILLBURN, 1 Dev. Rep. 388, and POSTON v. HENRY, 11 Ired. R. 302, cited and approved.)
ACTION of TRESPASS Q. C. F., for mesne profits, tried before his Honor Judge ELLIS, at Spring Term, 1853, of McDowell Superior Court.
Bynum and John Baxter, for plaintiffs.
Avery and G. W. Baxter, for defendant.
The facts of the case sufficiently appear from the opinion of the Court.
The premises had been recovered by the plaintiffs, in an action of ejectment, against the defendant. The case states that no writ of habere facias possessionem had issued upon this judgment, nor had the plaintiffs taken any actual possession of the premises, but the defendant had left it. The cases of COBLE v. WILLBURN, 1 Dev. Rep. 388, and POSTON v. HENRY, 11 Ired. Rep. 302, govern this. The first was an action on a covenant for quiet enjoyment. Jane Willburn had recovered from the plaintiff the land mentioned in the deed of conveyance, and after the recovery, the plaintiff here purchased the land from her; his possession under the first purchase never was actually disturbed. The Supreme Court ruled that Coble could not recover, for the want of an actual eviction. The latter was an action of trespass for mesne profits. On the trial below, it was objected, that the plaintiff did not show that, after the recovery in ejectment, he had entered. His Honor, the late CHIEF JUSTICE, in delivering the opinion of the Court, says: "The Court thinks the objection a good one: a recovery in ejectment (alone) will not support an action for mesne profits; for it is trespass for an injury to the possession, and therefore it is necessary for the plaintiff to show that he had regained the possession, either by being put in upon process, or let in."
In the ruling of the Court below, upon this point, there is error, and the case must go to another jury.
Judgment reversed, and a venire de novo awarded.