Roe v. Doe ex demise Downing , 46 Ga. 120 ( 1872 )

McCay, Judge.

Mr. Chitty says that the action of ejectment is neither a personal nor a real action, but a mixed one — partly to try titles, and partly for damages, though, for many years, the damages were only nominal, say a shilling, the real recovery being the land: 1 Chitty’s Plead., 188. And, until our Act of 1834, this was the law of Georgia. Since then, the recovery is also for the mesne profits, though it has always been the practice to introduce a special count for this purpose, abancloning the fiction. The real object of the action is to recover the land, and it is only as a fiction that it is for trespass.

We have, in Georgia, no statute of limitations for such an action. We attain the same end by our law of prescription, which gives the person in possession for seven years a title. And yet the Code, which has no period of limitations for ejectment, has a provision that all actions for trespass upon, or damages to realty shall be brought within four years after the right of action accrues. According to the argument of the plaintiff in error, an action of ejectment is barred, under the Code, in four years. We do not think it was the intention of the codifiers to include the action of ejectment under the head of actions of trespass. Nor was it the intent of the Act of 1869 to include it within the term torts. It is not the natural proper meaning of the word. No lawyer, in the ordinary use of the word tort, intends to include actions of ejectment, however well he may know that it has that form.

It is an action to try titles to land — a fictitious proceeding, in which John Doe alleges that, having leased from A B certain land, Richard Roe, with sticks and stones, drove him out, and did him great damage. This looks very tortious; but the writ is to be served on the tenant in possession, and he is required by law (new rules of Court, section 25,) to admit, in effect, everything chai’ged against him, to-wit: lease, entry and ouster. Having done this, admitted the trespass, he may defend — that is, the real action goes on.

The count for mesne profits is, no doubt, within the Act of 1869. It has always been held in this State not to have the same statutory period of limitations as the action to try titles. We cannot but think that if it had been intended to include the action of ejectment within this Act of 1869, considering the great detail, which is a marked feature of the Act, some other and more definite language would have been used than the words, “ all actions for torts,” and so thinking, we affirm the judgment.'

Judgment affirmed.