Carpenter v. Natoma Water & Mining Co.

Per Curiam. We concur in the views of Department Two with respect to this case. The result reached by the department is sustained by decisions in other States. (Wood on Limita, tians, 272; Doe ex dem. Kennedy’s Heirs v. Reynolds, 27 Ala-377; Smith v. Hornback, 4 Litt. 233; Jackson v. Haviland, 13 Johns. 228.)

Lord Mansfield, in Aslin v. Parkin, 2 Burr. 665, speaking of the effect of a judgment, recovered in ejectment, as evidence in an action for mesne profits, remarked: “This judgment only [617]concludes the parties as to the subject-matter of it. Therefore, beyond the time laid in the demise, it proves nothing at all; because, beyond that time, the plaintiff has alleged no title," etc.

The judgment in the common law ejectment determined the plaintiff to have the right of possession during the demise laid in the declaration. Under our laws, ejectment, so called, may be employed to try title, and if the issue is as to plaintiff’s seizin in fee, or for a less estate, the judgment in his favor determines that he was seized in fee, or, of the less estate, at the commencement of the action. But the judgment does not create a new estate, or vest a new title in the plaintiff, which interrupts the running of the Statute of Limitations, in case the same has begun to run. The running of the limitation can be interrupted only by an actual entry. The establishment of a right, in the lessor of plaintiff, to the possession for a term of years, did not, as the cases show, interrupt the running of the Statute of Limitations. There is no reason why the establishment of a right to a larger estate, by the judgment under our law, should interrupt the running of the statute. As an interruption of the statute, the judgment for the recovery of lands under our Code is no more effectual than a judgment in a common law ejectment.

Judgment reversed.

McKee, J., dissented.

Boss, J., expressed no opinion.

The opinion of Department Two is given below.

Morrison, C. J. Plaintiffs brought an action against the defendant for the recovery of certain land described in the complaint, and defendant interposed as a defense to the action, the plea of the Statute of Limitations. The case comes up on the judgment roll, and it will be sufficient for us to refer to some of the findings filed by the learned judge before whom the trial was had: —