Miller v. Henry

• Decision Date: 07 May 1877
• Citation: 84 Pa. 33
• Parties: Miller <I>versus</I> Henry.
• Court: Pennsylvania Supreme Court

84 Pa. 33

Miller versus Henry.

Supreme Court of Pennsylvania.

February 28, 1877.

May 7, 1877.

February 28th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 170.

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A. G. Green, for plaintiff in error.—The defendant was concluded by the judgment in the ejectment: Aslin v. Parkin, 1 Sm. Lead. Cas. 826; Man v. Drexel, 2 Barr 202; Blight's Executors v. Ewing, 2 Casey 137.

The liability for mesne profits extends to parties who were privy to the trespass: Storch et al. v. Carr, 4 Casey 135; Boyer v. Smith, 3 Watts 451. Here one of the defendants seeks to escape liability by the assertion that she was the housekeeper of the other defendant.

Samuel L. Young and Cyrus G. Derr, for defendant in error. —Defendant could not be precluded from showing that she was not in possession or had left it after the service of the writ: Sopp v. Winpenny, 18 P. F. Smith 80.

The fact that Mrs. Henry remained on the premises, in the family of her son, after the death of her husband, would not make the possession her possession.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 7th 1877.

The first two errors are not assigned according to rule, and may therefore be disregarded. The remaining assignments are to the charge, and really bring up for review all that is material in the cause.

It was settled in this state in Bailey v. Fairplay, 6 Binn. 450, that in an action for mesne profits the judgment in ejectment is not conclusive as to the length of time that the defendant was in possession. The reason assigned by Chief Justice TILGHMAN is clear and unanswerable. In the action of ejectment "as to the possession, it is enough if the plaintiff proves the defendant to have had it at the time the suit was commenced. So that no inference can be drawn from the recovery in the ejectment as to the length of time for which the defendant has been in possession." To the same effect are Mitchell v. Freedley, 10 Barr 198, and Sopp v. Winpenny, 18 P. F. Smith 80. Says the present chief justice, in the case last cited "neither on principle nor authority will the defendant be prevented from showing that he had left the possession or was not in it after service." There is nothing in any of these cases which countenances the idea that if the defendant was not actually in possession at the service of the writ or at any time afterwards, he cannot prove that fact in order to relieve himself from liability for mesne profits. It is true the judgment in ejectment is conclusive that on the day of the service of the writ he was in possession. If any question should arise in which that exact point...