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eBook details

• Title: Hardy v. Johnson
• Author : United States Supreme Court
• Release Date : January 01, 1863
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 51 KB

Description

Mr. Train, for the plaintiffs in error, relied, as respected the first point, on the familiar principles that the plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of the defendant's; and that a recovery must be had secundum allegata, or not at all: arguing, from the last position, that even though the special verdict found the plaintiff entitled to an undivided twentieth, he could not have judgment therefor, except by amending the declaration or complaint. On the second point, he contended that the title of the defendants acquired after issue was admissible; citing Stockdale v. Young, a decision in South Carolina,1 in which it was held that, 'in trespass to try title, the acquisition of title by defendant, since the last continuance, could not operate to prevent the recovery of damages to which the plaintiff might be entitled, and therefore that it was unnecessary to plead it puis darrein continuance; but that it might be given in evidence under the general issue.' Messrs. Hepburn and Hill, contra, relied, for the first point, on Stark v. Barrett;2 and, for the second, on Yount v. Howell,3 California decisions, both. This is an action of ejectment for the possession of certain real property, situated in the city of Oakland, in the State of California. The plaintiff below, the defendant in error in this court, alleges in his complaint a seizin in fee and a right to the possession of the entire premises. The proof established and the jury found that he was only seized of an undivided twentieth interest; but the court held that, as the defendants had shown no title, he was entitled to the possession of the entire premises, 'in subordination,' however, 'to the rights of his co-tenants,' and directed judgment to be entered in his favor as against the defendants for the same. The ruling of the court in this particular constitutes the principal error urged for a reversal of the judgment.

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