Hare v. Fury

3 Yeates 13

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1800
• Status: Published

Opinion

By the Court.

After a recovery in ejectment, the general rule is, that the plaintiff may recover mesne profits against the defendant for such length of time as he can prove him to have been in possession; if he goes beyond the time laid in the demise, the defendant may controvert his title, or may plead the statute of limitations, if the plaintiff attempts going back above six years. Bull. 87, 88. But a natural distinction presents itself in the case of one joint tenant, or tenant in common recovering the possession against their partners on an actual ouster. The defendants in such instances hold undivided interests and cannot be compelled to relinquish the entire possession. It was incumbent, therefore, on the plaintiff, to obtain possession under the proper writ, or otherwise, in a reasonable time after judgment in the ejectment; and if he is remiss herein for years, he shall not charge the defendant as a trespasser. FI ere the judgment was absolute at Nisi Prius on the 9th May 1791, and allowing one month thereafter as a reasonable time for obtaining the service of a habere facias possessionem, the plaintiff is entitled to mesne profits from the 10th September 1789 to 9th June 1791, being i-| years, and for no longer space of time.

Verdict pro quer. for 35l. damages.

Carefully examined, approved and followed in 46 Pa. 23. Cited in 68 Pa. 81 in support of the decision that a judgment in ejectment is but prima facie evidence that the defendant continued in possession when the habere was executed; and he may show that he had left the possession or was not in it after the service of the writ. Cited 3 W. N. C. 446.