Hardy v. Johnson

WRIT of error to the Circuit Court of the United States for the Northern District of California; the action having been ejectment, by Johnson against Hardy and wife, to recover a parcel of land in the city of Oakland, California. Johnson, in his complaint, as a declaration is there called, alleged a seizin in fee and a right to the possession of the entire demanded premises. The jury, however, by special verdict, found that the plaintiff was seized of a fractional part only; to wit, of an undivided twentieth interest. The defendants showed no title in any part; and the court gave judgment in Johnson's favor for the entire premises, 'in subordination to the rights of his co-tenants.'

On the trial the defendants offered in evidence a deed, conveying the interest of some of the co-tenants, executed after issue joined; an issue amounting in fact to the general issue. The deed was admitted (the question of its admissibility under the pleadings being reserved), and the jury based one of its findings upon it. The court, however, finally held the evidence not competent, and, in entering judgment on the verdict, excluded the finding made upon its basis.

The questions in this court were:

1. Whether judgment could properly be given, as it was in favor of the plaintiff for the entire premises, in subordination to the rights of his co-tenants?

2. Whether the deed was rightly excluded?

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, 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; and, for the second, on Yount v. Howell, California decisions, both.

Mr. Justice FIELD delivered the opinion of the court: