Kinney v. Service ( 1892 )

Montgomery, J.

The plaintiffs brought an action of trespass quare clausum in justice’s court, filing a declaration in the usual form, alleging that the defendant broke and entered the close of the plaintiffs. The defendant had the case certified to the circuit on the plea of title*

The premises consisted of inclosed farming lands, and the plaintiffs, to maintain their case, offered testimony tending to show that the plaintiff Kinney had been in possession of the land for some time, and that the-defendant entered without his permission, as a mere intruder, and cut the crops. The plaintiffs also offered evidence to show title in themselves, which was excluded. The defendant offered testimony tending to show previous possession in one Hayward, and that defendant went into possession under him. The court submitted to the jury the question of whether the plaintiffs had possession, and made their right depend upon possession by- both plaintiffs.

It was error to exclude the proof of title. It was-thought to be inadmissible under the declaration in this case; but it is competent for the plaintiffs, under such declaration, to show a possession, either actual or constructive. 1 Chit. PI. *380; Aikin v. Buck, 1 Wend. 466; 2 Greenl. Ev. § 614; Ruggles v. Sands, 40 Mich. 560; Ehle v. Quackenboss, 6 Hill, 537. The right to offer such evidence, under the general averment of breaking and entering plaintiffs’ close, is clearly recognized by statute; as under How. Stat. § 6894, if the plaintiff aver title, it is deemed admitted, unless the defendant takes steps to have it — a question of title — tried at the circuit; yet in the next section it is provided that if it shall appear on the trial, by the plaintiff’s own showing, that the title to lands comes in question, the justice shall certify the case to the circuit. This showing of title can, of course, only be made under the general averments;, as, if the title be specially averred, then, under the previous section, that question does not stand for trial before the justice.

This testimony was also admissible for the purpose of showing that the possession of Kinney, if possession by Mm was shown, was in the interest of himself and Millard, as co-tenants. The importance of this was emphasized by the instruction that possession by both plaintiffs must be shown. If one was in possession under a claim of right in both, the action was properly brought. Gilmore v. Wilbur, 12 Pick. 120; Austin v. Hall, 13 Johns. 286; 1 Washb. Real Prop. *421.

The judgment must be reversed, with costs, and a new trial ordered.

McGrath, Long, and Grant, JJ., concurred. Morse, C. J., did not sit.