(Laws 1839, Cobb's 1851 Digest, p. 489; Code 1863, §§ 3269, 3270; Code 1868, §§ 3280, 3281; Code 1873, §§ 3356, 3357; Code 1882, §§ 3356, 3357; Civil Code 1895, §§ 4997, 4998; Civil Code 1910, §§ 5575, 5576; Code 1933, §§ 33-104, 33-105.)
Cross references.- Form to be used in action for recovery of real estate and mesne profits, § 9-10-200.
JUDICIAL DECISIONSANALYSIS
General Consideration
History of action of ejectment.
- At common law, the action of ejectment was originally a fictitious action, by a tenant ousted of the tenant's term, in effect an action of trespass. The title of the freehold was not formally and directly in issue and the remedy was in damages only. In the modern development of the law, the fiction passed out and the action is now generally by one claiming ownership of real property to recover title and possession, together with rents and revenues, usually called mesne profits, and damages resulting from the unlawful detention. Sweat v. Atlantic Coast Line R.R., 81 F.2d 492 (5th Cir. 1935).
O.C.G.A. § 44-11-7 refers only to plaintiffs in ejectment and says nothing of the defendant. Moody v. McHan, 66 Ga. App. 29, 16 S.E.2d 889 (1941).
Count for mesne profits may be in name of nominal plaintiff. Shadwick v. McDonald, 15 Ga. 392 (1854).
Value of premises is material evidence on question of mesne profits only. Roe v. Doe, 42 Ga. 403 (1871).
Mesne profits recoverable up to final judgment.
- While in an action of ejectment, mesne profits may be recovered up to the time of the final judgment, this exception to the general rule is based on O.C.G.A. § 44-11-7. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).
Mesne profits recoverable.
- In an ejectment action, the trial court erred in adopting the special master's finding that concluded that the ejector was entitled to recover the property but had no right to recover mesne profits because a plaintiff in an ejectment action may seek recovery of mesne profits, such as rental income from the land. Small v. Irving, 291 Ga. 316, 729 S.E.2d 323 (2012).
Defendant not liable for mesne profits taken, prior to defendant's own entry, by those under whom defendant claims. Gardner v. Granniss, 57 Ga. 539 (1876).
No liability for increments from improvements.
- A defendant in ejectment cannot be compelled to pay an enhancement amount as rent in consequence of defendant's own improvements. That rule applies though defendant is a trespasser. Dean v. Feely, 69 Ga. 804 (1883).
Plaintiff owner not entitled to recover mesne profits for time prior to requisition of title. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).
Mesne profits and land value unrelated to subsequent action for breach of warranty.
- The mesne profits and the value of land involved in an ejectment action have no connection with the measure of damages recoverable in a subsequent action by the vendee, who has lost the land, against the vendor on breach of warranty. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264 (1935).
Where grantor entitled to cancellation of deed for fraud or mental incapacity of grantor, the grantor is also entitled to the rents and profits of the land for the time that the grantee was wrongfully in possession. Moody v. McHan, 66 Ga. App. 29, 16 S.E.2d 889 (1941).
Heir may petition to recover rents and land for period grantee in wrongful possession.
- Where the heir, or devisee under a will of the deceased grantor, petitions to set aside the deed of the grantee, the heir, or devisee, may ordinarily, under a proper allegation, ask in the same petition to recover rents and profits for the time during which the grantee was in wrongful possession. Moody v. McHan, 66 Ga. App. 29, 16 S.E.2d 889 (1941).
Rent of sawmill is an element of damages. Morris v. Tinker, 60 Ga. 466 (1878).
Recovery in ejectment as bar to trespass, see Cunningham v. Morris, 19 Ga. 583, 65 Am. Dec. 611 (1856).
Burden of proof on claimant of mesne profits.
- One who in an action to recover land claims mesne profits has the burden of producing evidence to show entitlement to some amount. Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).
O.C.G.A.
§ 44-11-7 on damages for trespass not applicable. - O.C.G.A. § 51-9-6 which limits claims for damages in cases of continuous trespass to those incurred before suit is filed did not apply in an ejectment action by a landowner against an outdoor sign company. Outdoor Sys. v. Woodson, 221 Ga. App. 901, 473 S.E.2d 204 (1996).
Cited in Averett v. Brady, 20 Ga. 523 (1856); Doe v. Roe, 24 Ga. 384 (1858); Downing v. Anderson, 126 Ga. 373, 55 S.E. 184 (1906); Treadway v. Harris, 34 Ga. App. 583, 130 S.E. 827 (1925); Clements v. Elder, 221 Ga. 438, 145 S.E.2d 246 (1965); Gregory v. Mayor of Athens, 141 Ga. App. 821, 234 S.E.2d 404 (1977); Courtesy Leasing, Inc. v. Christian, 266 Ga. 187, 465 S.E.2d 443 (1996).
Bar to Separate Action
Rule at common law changed.
- O.C.G.A. § 44-11-7 changed the common law which was to the effect that a plaintiff in ejectment must resort to a separate action for mesne profits. Shadwick v. McDonald, 15 Ga. 392 (1854); Cobb v. Wrightsville & T.R.R., 129 Ga. 377, 58 S.E. 862 (1907); Brydie v. Pritchard, 97 Ga. App. 1, 101 S.E.2d 915 (1958).
Applicability of O.C.G.A.
§ 44-11-7(b). - The prohibitory terms of O.C.G.A. § 44-11-7(b) apply only to those persons who have as plaintiffs in a prior ejectment action recovered possession. Brydie v. Pritchard, 97 Ga. App. 1, 101 S.E.2d 915 (1958).
The requirement that recovery of property and mesne profits be in one action only applies to those persons who have as plaintiffs in a prior ejection action recovered possession; thus, an equitable petition by an executor to enjoin the defendant's building on real estate will not bar as an ejectment the defendant's right to sue for mesne profits after title is shown to be in defendant. Parker v. Salmons, 113 Ga. 1167, 39 S.E. 475 (1901); Jones v. Cliett, 114 Ga. 673, 40 S.E. 719 (1902).
Heirs of one tenant in common cannot have an equitable accounting for personal property of their ancestor against another cotenant, and mesne profits accruing prior to the testator's death are not realty; in such a case, the requirement that ejectment and mesne profits be sued for in one action does not apply. Smith v. Smith, 141 Ga. 629, 81 S.E. 895 (1914).
Abandonment of ejectment count does not prohibit continuance of action for profits.
- The mere abandonment of the count in ejectment by the plaintiff who has not had a prior recovery in such action is not such a prior recovery as would prohibit the continuance of the action for mesne profits. Brydie v. Pritchard, 97 Ga. App. 1, 101 S.E.2d 915 (1958).
One who has filed an action in ejectment in the fictitious form with a count for mesne profits may, by showing that since the commencement of the action the individual has parted with title to the land in dispute, abandon the ejectment element and proceed for mesne profits only during the time the individual claims to have been the owner of the land. Brydie v. Pritchard, 97 Ga. App. 1, 101 S.E.2d 915 (1958).
Where parties agree to limit issues at trial, later action for mesne profits barred.
- Where parties, through counsel, agree to limit the issues to recovery of the real property in ejectment, and the plaintiff wins, the plaintiff may not later sue for mesne profits. Neil v. Harris, 133 Ga. 493, 66 S.E. 246 (1909).
Regardless of form of action to recover land, separate action for mesne profits barred.
- Whether an action brought for the recovery of land is in the form of ejectment, or a complaint for land in the statutory form, or an equitable petition for the recovery of the land, the plaintiff cannot thereafter, in a separate action, recover mesne profits against the same defendant for rents which may have accrued to plaintiff from the premises in dispute. Moody v. McHan, 66 Ga. App. 29, 16 S.E.2d 889 (1941).
When the plaintiffs in a former action, brought for the recovery of the land, took a judgment favorable to themselves, whether it was in terms that they should recover the land, or merely that they had a right to recover, and that the same be partitioned, they should in that action also have had settled and adjudicated the question of mesne profits. They had the right to eliminate that question from that action if they wished to; but, when it was once eliminated, it ceased to exist as a basis of a claim on the part of these plaintiffs against the defendant, and it could not be revived and insisted upon in a separate action. Milton v. Milton, 176 Ga. 88, 166 S.E. 857 (1932).
New trial may be granted on question of mesne profits alone, without including the issue of rights to the real property. Cowart v. Strickland, 149 Ga. 397, 100 S.E. 447 (1920).
When the Supreme Court of Georgia has reversed a decision for plaintiff in an ejection action as regards mesne profits, due to improper amendment for such profits without notice to defendant by plaintiff the Supreme Court will permit the plaintiff if under O.C.G.A. § 5-6-8 to give appropriate notice to the defendant and to bring action for the profits. Brown v. Tyson, 150 Ga. 598, 104 S.E. 420 (1920).
Mesne profits accruing up to appeal not recoverable in separate action.
- The mesne profits accruing to the plaintiff up to the time of the verdict can be recovered only in that proceeding and upon proper pleadings therefor. Those accruing thereafter, and while the case is on appeal to the Supreme Court of Georgia, can be recovered only in the manner pointed out in Brown v. Tyson, 150 Ga. 598, 104 S.E. 420 (1920). This is the plaintiff's exclusive remedy, and plaintiff cannot maintain a separate and independent action, to recover therefor. The petition is therefore subject to demurrer (now motion to dismiss) and should be dismissed. Beetles v. Steadham, 187 Ga. 601, 1 S.E.2d 431 (1939).