Nathan v. Dierssen

SLOSS, J.

The action was brought by Charles P. Nathan against George E. Dierssen to recover the rents, issues, and profits of a tract of land in Yolo County, alleged to have been unlawfully withheld from plaintiff by defendant. Pending the action the original defendant died and Eda B. Dierssen, as executrix of his last will, was substituted in his stead. A supplemental complaint alleged the presentation of a claim by the plaintiff to the executrix. Upon a trial without a jury, the court rendered judgment in favor of the plaintiff for $2,592.75, and from this judgment and an order denying her motion for a new trial the defendant appeals.

The present action was commenced in May, 1902. It appears from the bill of exceptions that in July, 1898, the plaintiff Nathan had commenced a former action against Dierssen and another to quiet his title to the land in question, and for restitution of the possession thereof, and that on April 22, 1902, a judgment in accordance with plaintiff’s prayer had been entered in said action. An appeal was taken to this-court, and the judgment was affirmed on the twenty-third day of February, 1905.

(Nathan

v.

Dierssen,

146 Cal. 63, [79 Pac. 739].) It appeared further, that pending said appeal, to wit, on November 1, 1902, Dierssen surrendered possession of the premises to the plaintiff. Such surrender, it will be noted, took place after the commencement of the present action.

The appellant contends that, under this state of facts, the plaintiff was not entitled to maintain an action for rents and profits, for the reason that he was not, at the date of the filing of his complaint, in possession of the land. It was without doubt the established rule at common law that -an action against a wrongful disseisor for mesne profits could not be maintained except by a plaintiff who had regained actual possession of the premises (15 Cyc. 213, 215 ;

Stancill

v.

Calvert,

63 N. C. 616 ;

Caldwell

v.

Walters,

22 Pa. St. 378 ;

Ainslie