Page:Federal Reporter, 1st Series, Volume 3.djvu/562

 SARNABD V. EABT. 555 �ruling ; but 1 rule, as a matter of law, that said agreement 'E * does impart an asseut of the demandants to the tenants taking possession of the premises, and that the agreement of the tenants that the ' decrees ' shall not prejudice the de- mandants' ' rights to the possession ' does not so far qualify the demandants' assent as to leave the tenants liable as tort- feasors. I therefore rule that the demandants cannot re- cover mesne profits prior to the date of the writ." To this ruling the demandants except. �The argument of the tenants in support of this ruling is that, to entitle the demandants to recover mesne profits, the possession of the tenants must be shown to bave been a tor- tious possession; that agreement "E" imparts a license on the part of the demandants that the tenants might enter and occupy; that having entered and occupied by the license of the demandants their acts were not wrongful, and had not the elements of tort; and that their plea of nul disseisin is conclu- sive as to their tortious possession at the date of the writ, but not before. The objection to this reasoning is twofold: First. The agreement provides in express terms that the trans- fer of the property to the tenants shall not prejudice ot impair the right of the demandants in and to the title and possession of the property. . This reservation must include what is inci- dent to the title and possession : the right to the use and prof- its of the premises. Second. The assessor finds that the ten- ants claimed title adverse to the demandants from the date of their entry. This finding excludes the idea that the tenants were in possession by license of the demandants, or in subor- dination to their title, and must be construed as a finding that the possession of the tenants from their first entry was ad- verse to the demandants, and was a disseisin. It thus ap- pears that the disseisin of the tenants continued from the time of their entry until after the date of the writ. This being so, the conclusion is that the demandants are entitlod to re- cover the mesne profits from the date of the tenants' entry. �The judgmentof the court is: Demandants^ exceptions sus- tained, and the demandants to have jvdgment for mesne profits from Atigust 17, 1871, asfound by the assessor. ' ����