Garner v. Marshall

Field, J. The complaint in this action is very defective; it does not allege title or prior possession in the plaintiff or those through whom he claims, and it contains no direct averment of any entry by the defendants, or occupation by them at the commencement of the action. It simply sets out the execution of a mortgage upon the premises by one Johnson, and the proceedings in a foreclosure-suit thereon, the entry of the decree, the sale thereunder and purchase by the plaintiff, to whom a Sheriff’s deed was given, without any mention of title or possession in the mortgagor, and concludes with an averment of demand upon the defendants for the possession, and their refusal to deliver the same. The defects would have been fatal on demurrer, and we are not entirely satisfied that they are cured by the verdict. The general rule is, that wherever facts are not expressly stated, which are so essential to a recovery, that, without proof of them [270]on the trial, a verdict could not have been rendered under the direction of the Court, there the want of the express statement is cured by the verdict, provided the complaint contain terms sufficiently general to comprehend the facts in fair and reasonable intendment. (Stephens on Pleading, 149; Jackson v. Peeked, 1 M. and S., 234.) The decision of the question is not essential to the determination of the appeal, as the judgment below must be reversed upon another point.

The evidence produced on the trial established the fact that the defendant Spear was in the occupation of the premises at the commencement of the action, and that the other defendants only claimed title to them under a constable’s sale. Mo attempt was made to prove possession by Marshall and Sotor, and the Court below erred in refusing a nonsuit as to them, and in qualifying the instruction requested as to their occupation of the premises. Mere assertion of title in conversation with the plaintiff’s witness could not render them liable in the action. Ejectment is a possessory action and must be brought against the occupant ; it determines no rights but' those of possession at the time, and it matters not who has, or claims to have, the title of the premises. It will only lie against a party out of possession claiming title when the premises are unoccupied, and bis claim is accompanied with the exercise of acts of ownership, such as enclosure, cultivation, and the like. The thirteenth section of the Practice Act, which provides that any person may be made defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved, has no application to the action of ejectment. It refers to cases in equity where all persons, whose rights may be affected, are to be brought in as parties, in order that a conqplete decree may be rendered, (2 Greenl. Ev., 304; Jackson v. Ives, 9Cowen, 661; Van Horn v. Everson, 13 Barb., 532; Champlain and St. Lawrence Railroad Company v. Valentine, 19 Barb., 485.)