CHILTON, J.
The plaintiff in error brought an action of ejectment to recover a lot of ground in the city of Mobile. The declaration and notice having been served on Lewis and Otis, tenants in possession, and they failing to appear, at the Fall Term of the Circuit Court, 1841, the plaintiff took judgment by default against the casual ejector, and a writ of habere facias3 [735] &c.., was issued, and the representatives of the lessor of the plaintiff were put in possession by the sheriff.
At the Spring Term, 1842, Oliver Holman and Agnes Howard moved the court to be restored to possession of the locus in quo, and exhibited affidavits showing that they had been turned out of possession by the writ so executed by the sheriff, that they had no notice, &c., and propounding their interest as heirs of Abner Holman, they prayed to be admitted to defend. The Circuit Court rejected their application, and upon their writ of error to this court, the judgment was reversed. At the Spring .Term, 1843, the cause having been remanded, the Circuit Court made an order allowing the said Holman and Howard to come in and defend, and thereupon they entered into the usual consent rule, and pleaded not guilty. After a verdict for the plaintiff, and a new trial, at the April Term, 1848, the said Holman and Howard, by leave of the court, filed their plea, setting forth “ that since .the last continuance of this cause, viz., on the 28th day of December, 1847, the President, Directors and Company of the Bank of Norfolk, a company incorporated and residing in the State of Massachusetts, obtained a judgment in ejectment, for a moiety of the premises, in the Circuit Court of the United States for the 9th Judicial District, in which suit the lessees of the said Hqward became parties as tenants in possession. And the said ejectment was brought upon a mortgage held by the said bank upon the said property, ■ which mortgage was given prior to tho possession of the said defendants by a party claiming to hold title from their ancestors, and which was paramount to their, claim of title, and the said suit was an adversary suit. And the said.Holman and Howard further show and allege, that at the-— Term of the Court of Chancery for the First Chancery District, in a suit to foreclose the said mortgage, upon a .bill filed by the said bank, wherein the said Holman and Howard were prayed to bo made defendants, such proceedings were had, that by. the. decree of the said court, the promises were declared to be subject to the said mortgage debt, which decree was afterwards, viz., at the --Term of the Supreme Court, affirmed, and by the final decree of the said Chancery Court, made since the last continuance, it rvas ordered that the former orders and -decrees be carried into effect. And tho said bank have taken possession of the entire premises under the title afore[736] said, and the defendants are no longer in tbe possession. And' the said bank- are not,, nor have they ever held a title, in privity with that of these defendants, nor with the possession of Lewis and Otis; which these defendants are ready to verify, wherefore-they pray judgment whether they ought to be further compelled to answer the said suit, and that the same may be quashed.”
To the foregoing plea the plaintiff demurred, which demurrer was overruled. He then replied that he had no notice of the said mortgage and recovery in ejectment, as set forth in the plea, &c-To- this replication the defendants demurred, and the court sustained the demurrer.
The plaintiff declining to proceed further, the court gave judgment that the defendants go hence and recover their costs, &c.
The legal sufficiency of this plea is the question to be decided.
It is laid down in Comyn, that if land.be recovered by a stranger pending the writ, it thereby abates; but if the recovery -was not against the defendant, but a stranger, it is no plea; so if it was by collusion; so, also, if the tenant enfeoff another pending the writ, and .afterwards disseize his feoffee, who recovers against him, such recovery does not abate the writ; nor will a recovery by nil dicit have this effect, if the judgment of recovery was upon a writ brought after the first writ was purchased; nor a recovery by render or default. — Comyn’s Dig. tit. Abatement, H. 54,. 1, 2.
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CHILTON, J.
The plaintiff in error brought an action of ejectment to recover a lot of ground in the city of Mobile. The declaration and notice having been served on Lewis and Otis, tenants in possession, and they failing to appear, at the Fall Term of the Circuit Court, 1841, the plaintiff took judgment by default against the casual ejector, and a writ of habere facias3 [735] &c.., was issued, and the representatives of the lessor of the plaintiff were put in possession by the sheriff.
At the Spring Term, 1842, Oliver Holman and Agnes Howard moved the court to be restored to possession of the locus in quo, and exhibited affidavits showing that they had been turned out of possession by the writ so executed by the sheriff, that they had no notice, &c., and propounding their interest as heirs of Abner Holman, they prayed to be admitted to defend. The Circuit Court rejected their application, and upon their writ of error to this court, the judgment was reversed. At the Spring .Term, 1843, the cause having been remanded, the Circuit Court made an order allowing the said Holman and Howard to come in and defend, and thereupon they entered into the usual consent rule, and pleaded not guilty. After a verdict for the plaintiff, and a new trial, at the April Term, 1848, the said Holman and Howard, by leave of the court, filed their plea, setting forth “ that since .the last continuance of this cause, viz., on the 28th day of December, 1847, the President, Directors and Company of the Bank of Norfolk, a company incorporated and residing in the State of Massachusetts, obtained a judgment in ejectment, for a moiety of the premises, in the Circuit Court of the United States for the 9th Judicial District, in which suit the lessees of the said Hqward became parties as tenants in possession. And the said ejectment was brought upon a mortgage held by the said bank upon the said property, ■ which mortgage was given prior to tho possession of the said defendants by a party claiming to hold title from their ancestors, and which was paramount to their, claim of title, and the said suit was an adversary suit. And the said.Holman and Howard further show and allege, that at the-— Term of the Court of Chancery for the First Chancery District, in a suit to foreclose the said mortgage, upon a .bill filed by the said bank, wherein the said Holman and Howard were prayed to bo made defendants, such proceedings were had, that by. the. decree of the said court, the promises were declared to be subject to the said mortgage debt, which decree was afterwards, viz., at the --Term of the Supreme Court, affirmed, and by the final decree of the said Chancery Court, made since the last continuance, it rvas ordered that the former orders and -decrees be carried into effect. And tho said bank have taken possession of the entire premises under the title afore[736] said, and the defendants are no longer in tbe possession. And' the said bank- are not,, nor have they ever held a title, in privity with that of these defendants, nor with the possession of Lewis and Otis; which these defendants are ready to verify, wherefore-they pray judgment whether they ought to be further compelled to answer the said suit, and that the same may be quashed.”
To the foregoing plea the plaintiff demurred, which demurrer was overruled. He then replied that he had no notice of the said mortgage and recovery in ejectment, as set forth in the plea, &c-To- this replication the defendants demurred, and the court sustained the demurrer.
The plaintiff declining to proceed further, the court gave judgment that the defendants go hence and recover their costs, &c.
The legal sufficiency of this plea is the question to be decided.
It is laid down in Comyn, that if land.be recovered by a stranger pending the writ, it thereby abates; but if the recovery -was not against the defendant, but a stranger, it is no plea; so if it was by collusion; so, also, if the tenant enfeoff another pending the writ, and .afterwards disseize his feoffee, who recovers against him, such recovery does not abate the writ; nor will a recovery by nil dicit have this effect, if the judgment of recovery was upon a writ brought after the first writ was purchased; nor a recovery by render or default. — Comyn’s Dig. tit. Abatement, H. 54,. 1, 2.
The same author, speaking of the form of the plea, says u that if a recovery be pleaded, it ought to be pleaded that execution is also sued.” We have been unable to obtain the old authorities to- which he refers, so as to ascertain whether the rule stated by him applies solely to real actions, or is extended so as embrace the mixed action of- ejectment. The only American case referred' to.by the editor of Comyn is Walcutt v. Spencer, (14 Mass. 409,); where the court, per Jackson,. J., recognize the rule stated, by Comyn as applicable to writs of entry at common law. There is much reason in holding that in a writ of entry, where the defendant is commanded either to deliver seizin of the land to the demandant,, or show cause why. ho will not,, to allow him to set up. in abatemeut of the writ that he cannot comply with its mandate, since he has, puis darrein continuance, been ousted by title paramount to his, or evicted by an adversary judicial proceeding.. The. tenant, in such case ceases wrongfully to with-[737] bold the possession of the land from the' demandant. He is driven from tlic contest by title paramount',- or'by the execution ©f the sentence of the law, and being dispossessed, he cannot render the possession to the demandant, though the court should so adjudge. But we are unable to perceive any reason or propriety in applying such a rule to the action of ejectment, as the same obtains under our law.- According to our statute, when the action of ejectment is brought, the jury are required to assess tho damages in favor of the real plaintiff, as in actions of trespass to try titles, (Clay’s Dig. 320, § 46,) and by rules of this court, adopted in 1842, the mode'ef proceeding where there are several actions pending for the same premises is pointed out.Clay’s Dig. 611, § 25-6-1. By the provisions of the 26th sec-above referred to, where several actions of ejectment have been commenced for the same premises on the demises of different lessors, it may be lawful for the plaintiff in either of the cases,during the pendency of his suit, to serve a copy of his declaration on the lessors of the plaintiff) or his attorney, in the other case or cases, with a notice of the pendency of his action, and to require him or them to defend against the ^ame; and in the event of the recovery by the plaintiff giving -the notice, it shall-not be lawful for the plaintiff notified as aforesaid to proceed in the act-ion for the recovery of the tenements seed for,-but only for cost and damages ; provided that sixty days notice shall bo given,, before the said plaintiff shall be required to join the consent rule. So that, according to-this rulcralthough a plaintiff may fail with an adversary plaintiff' to recover the land,-and the same may be recovered against him, he may nevertheless proceed for his cost-and damages. In the plea under consideration,-it is not-averred that the title upon which the Bank, of- Norfolk recovered is paramount to that of the plaintiff; and-if we concede that the change of the possession by judicial sentence puis darrein' continuance would be an answer to the ejectment as to the land sought tobe recovered, since it may have been had upon a title inferior to that of the plaintiff in this action, it would constitute-no defence as to the damages which the plaintiff may have sustained by the wrongful occupancy of the land by the defendants.The plea, however, goes to-the whole action.
But we do not think it good for any purpose. If the title of the bank be superior to that of the plaintiff in ,this- action,, the- [738] ■ defendants, being tenantsiin.-possession,,and ¡.not estopped by the ■ existence of any peculiar .relation which they bear to .the plaintiff’s title, may set up that superior outstanding title .to defeat the recovery. It.is .thus .they.may (protect themselves against liability to damages to any one,huí the true .owner of the premises. ' JB.ut we .confess .that we are .upable to discover upon ■.what .principle, founded in justice, or .legal.r jght, .the defendants may exonerate themselves from -liability .to damages .to the true owner, for their unlawful detention of the premises from him, by : reason of a recovery of the premises from .them hy one, who, in turn, would-become liable,to pay damages .upon entering into possession. This hypothesis is not ..inconsistent with the plea which was depiurrecLto., and shows, we think, that it cannot he supported,
.Upon the whole, we are of. opinion that the plaintiff should he permitted,to try his title,,.and.if the hank, or any one else in possession when this suit was .instituted, claims superior right, the .rules governing this action, as declared by the several statutes ¡and the rules of co.urt above referred to, and recognized hy this ..court in Howard & Holman v. Kennedy’s Executors, (4 Ala. 592,) furnish a, clear remedy for ..asserting and maintaining that i right.
The judgment is reversed and the cause.remanded,
JQaRgaN, Q. J., not sitting.