De Mott and Billson against Wm. Hagerman and J. Hagerman

*De Mott and Billson against Wm. Hagerman and J. Hagerman. Replevin for wheat and rye: tried at the Seneca circuit, . J 1 3 in June, 1827, before Throop, 0. Judge, when the follow- • ,, . . ing matters were m evidence: Sealed articles of agreement between the plaintiffs, dated April 1st, 1824, containing these words: “John De Mot* aSrees to tot said Billson work a part of his farm, &e.Billson to work such part of the farm as De Mott shall ™ay direct, to pul all grain in, in good order, to find all the seed; and out of the crop to deduct De Mott’s half, one half of seed so found, to deliver De Mott, at his store, one half of all the produce raised on said farm, &c., said ■Billson to go on the farm as soon as convenient, and 'leave it the first day of April next.” Billson entered on the premises and sowed wheat and rye that season, and remained on the farm until in the month of March, 1825, at which time the defendants entered and ousted him, claiming that the title was in Wm. Hagerman, one of the defendants. They continued to possess and occupy the premises till the latter part of November, 1825, when possession was re-taken by De Mott; but Billson was never afterwards in possession. While in possession, the defendants harvested the wheat and rye sown by Billson the previous fall, and stacked the sheaves on another piece of land in their possession. They were in possession of the wheat and rye when De Mott was restored to the possession of the farm. Land being let on shares, the lessor and the lessee are tenants in common of the Where one ousts8 the owner of land, possession, occupying it, and cutting and removing off the crops, though they were sown by the owner, yet replevin will not lie for the crops so removed. The only remedy is by action of trespass quaire clausum, fregit after regaining possession by ejectment, or semb. by re-entry without ejectment. The defendants moved for a non-suit, on the ground that the plaintiffs had not made out a joint ownership in the grain: also that replevin would not lie, the injury being done while the defendants were in full possession; but the action should have been trespass quare clausum fregit. The judge decided that a joint ownership was established ; but non-suited the plaintiffs on the latter ground. *J. Maynard moved to set aside the non-suit. He said the plaintiffs were clearly tenants in common, and entitled to a joint action. (8 John. Rep. 151.) The defendants were desseisors; (6 John. 197;) and after re-entry, the plaintiffs had a right either to bring trespass de bonis, &c., or replevin; (Pow. on Mort. 212, 213, 214; 8 Wheat. 75, 80 ;).for a wilful trespasser cannot acquire title, merely by changing property from one species into another. (5 John. Rep. 348; 6 id. 163. Brown v. Sax, 7 Cowen, 59, and the authorities there cited.) Every day’s possession of the goods by the defendants, was equivalent to a new taking. (1 T. R. 475.) A. Gibbs, contra. There was no common interest in This was "a letting of the land on shares for a That creates no lease, and the owner, alone must bring trespass. (See 8 John. 151.) So of replevin. rppe plaintiffs should have been non-suited for a misjoinder. (18 John. 235.) If the plaintiffs had any remedy, it was trespass quart clausum, fregit The injury took its character from the first entry, which-should have been-sued for, and a continnance of the trespass alleged. It is absurd to say that replevin, or trespass de lords, &c., will lie for every field of grain or grass which one -in possession claiming title shall sever from the premises, -or that a remedy which was originally peculiar to the case, could, without any change of that case, be 'altered. Brown v. Sax, was for the tortious taking of timber by one OQt of possession, [MAJORITY — Oiina, per Woodworth, -J.] Oiina, per Woodworth, -J. This was a letting -of land upon shares-; not-a -lease ; and - as to the -grain -raised, the plaintiffs were -tenants in common. (8 John. 152 ; 3 John. 216,) It does not appear -in what manner the defendants obtained possession. It is not stated that they wrongfully disseised Billson. If the entry was lawful, the property "of the Wheat and rye was in the 'defendants. If it was unlawful and worked a disseisin, trespass quare clausum * fregit might have-been maintained for the first entry; and, 'after a recovery in ejectment, damages would follow "for the mesne profits. But I do not see how the parties can -maintain "an action for the wheat and rye raised, disconnected from the remedy by trespass. If that be -allowable, <a plaintiff may -sue in trover for wheat or corn raised on land, of which he has been disseised, and that, too, before his re-entry. The action of "replevin does not lie in such a Case. That Jaetion is -founded on the right of the party. How, after -the -entry and'occupation of the "defendants, the right -of the plaintiffs to the crop ceased; though it could be available by an action of trespass, after a recovery of the -land by ejectment. In this case, we know not by what means one of the plaintiffs was restored to the possession, nor is it m&terial: for bad it been by ejectment, the action for mesne profits was the remedy. It is not necessary to inquire whether the Regaining of possession by one of the plaintiffe, without suit, enured to the benefit of both, and whether, if so, or if both had in fact entered, they could have an action for damages done after-the first entry. It is said in one book, “ If a man who once had the possession in fact of real estate, quit it or be deprived thereof, he cannot maintain an action of trespass -girare clausum fregitt for .an injury done thereto, which was.done betwixt the time of his quitting or being deprived of the possession, and Ms regaining the same by re-entry.” (Bac. Abr. Trespass, (C.) pl. 3,.cites Bro. Tresp. pl. 365.) In another hook, it is. said, "If a man -be. disseised, after his re-entry,- he may have action of. trespass against the disseisor, for any. trespass .done by him. after the diseisin; for, by his re-entry, his possession is restored ah initio, and all times after.” (2 Roll. Abr. Trespass, (T.) pl. 5.) Such seems now to be the settled'doctrine. (4 Cowen, 338, and the cases there cited.) It is; enough, ^however, that this is not an action of trespass.. The action is misconceived; and 'the motion to set aside the non-suit -is. denied. Motion denied.: Oh examining the place in Bro. cited by Bacon, the doctrine will be found consistent with that in Bolle, and the modern authorities. A literal translation of Bro. (Trespass, pl. 365,) relied on by Bacon, is-as follows: “In trespass, the defendant said that the plaintiff himself was seised in fee, and. leased to the defendant for six years, and that after .the term ended, the defendant held himself in, and did. the trespass of which the plaintiff has brought this action before any entry.” Judgment, &c. And by all the justices, trespass vi. et armis does not lie before that the plaintiff has made regress, as here. Quod nota. Brooke cites the Tear Book, 22, E. 4, 13, and gives a very faithful abstract of the original case, whith will he found at pi. 31 of the folio 13, cijed by him. It was debated by counsel upon the . very point stated by Brooke; and the action was denied, because there had been no re-entry.