Thrash v. Johnson , 6 Port. 458 ( 1838 )

GOLDTIIWAITB, J.

The endorsement on the writ discloses, that this action is brought to recover possession of, as well as to try titles to, the land alleged to have been trespassed on.

The declaration is in the usual form for a trespass quare clausum fregit, and contains no averment of title; nor is the assertion made therein, that the action is instituted to recover the possession of, and to try the title to, the land described. Thrash, to this declaration, pleaded not guilty; and on the trial, a verdict was returned by the jury in favor of the plaintiff Johnson, “for one hundred and fifty dollars damages, for the detention of the land in the declaration mentioned, and possession of the land and premises.” On this verdict, judgment was. rendered for the recovery of the damages assessed with the land and premises.

One of the assignments of error, questions the regularity of this form of proceeding, when applied to a suit for the recovery of land, and it is insisted that the declaration does not disclose such a state of facts as will authorise the court to render a judgment for the recovery of the land. It is. true,, that independent of the statute authorising this form of action as a'substitute for the action of ejectment, this verdict and judgment would be irregular;' hut under the statute, and thé practice^ which, has grown up in relation to it, a different rulé must prevail. The act of assembly^* directs the plaintiff to endorse on the writ in an action of trespass, that the suit is brought as' well to try title, as to recover damages, and is silent as to the form of the declaration. We understand that in many sections of the State, the form of declaring pursued in this case has been cust'omary, and we do not feel warranted now to abrogate this practice, as no inconvenience can arise from allowing it. The objection, that parties will not be informed by the pleadings of the true issue formed between them, is more specious than sound, for the defendant’ is advised by the endorsement on the writ what he is required to defend, with much more certainty, than he was by the declaration in the action of ejectment. This- assignment of error cannot avail the party. .,

On the trial of the cause, a bill of exceptions was sealed by the court, from which it appears that the title of the plaintiff below had its- foundation in a certificate of final payment, issued by the receiver of public moneys at Montgomery, and shewing the purchase of the land in controversy, by one Eli Naron, from the United States, and. an assignment of the land, by an instrument not under seal to Johnson.

In this aspect, the case is precisely similar to the one of Ansley vs. Nolan, decided at this term, and on its authority, the judgment of the Circuit court must be reversed, and as the plaintiff may have some other and different title to the land than is now disclosed, the case is remanded for further proceedings.

It will he perceived, that we have not adverted to one of' the positions assumed by the plaintiff in error, to wit, that the assignment of a pre-emption right before the issuance of a patent for the land is void under the act of Congress. We do not consider this question as arising out of the evidence before the court below, and therefore the expression of any opinion on it would be a departure from the usual practice of this court. Before this question can be raised, it must appear with certainty and precision, that the title to the land was derived from the United States under the act of Congress referred to.

* Digest, 265, s. 41.