Brooke v. Gregg Ex Rel. Gregg

Page, J., delivered the opinion of the Court. This is an action of ejectment brought by the appellees to recover certain real property situate in Prince George’s County. The appellant pleaded not guilty and res adjudicatei. To the second plea the appellees demurred, and the Court having sustained the demurrer and the judgment being for the plaintiff, the defendant has appealed.

The second plea is as follows : “ That at the October term, 1896, of the Circuit Court for Prince George’s County, a case was tried before the Court in which the plaintiffs in this case were plaintiffs, and the defendant in this case was defendant, the said case being an action of ejectment to recover the same land claimed in the declaration in this case, and intervening rents and profits, and the judgment of said Court was for the defendant.” The record of the case, thus referred to, was not in any manner before the lower Court, otherwise than as was set forth in the plea. It has been inserted in the record in this appeal, not as having been apart of the proceedings in this case, but was “added” thereto at the “ request of the plaintiffs’ attorneys.” The proceedings in that case not having been specifically set out in the plea, the questions now presented to this Court must be determined upon the averments of the plea, without ref ²³⁶ erence to anything that might have appeared, if the record of the former case were properly a part of this record. At common law, the action of ejectment could only be used to recover the possession of real property. It was a very peculiar mode of proceeding.

Both the plaintiff and defendant were fictitious persons. John Doe, the fictitious plaintiff, was supposed to have had demised to him a term of years by the claimant, who by reason thereof became the real plaintiff. A fictitious notice, supposed to have been signed by Richard Roe, the imaginary defendant, was then served upon the party in possession, who was thereupon permitted to appear and defend, upon entering into the consent-rule, by which he admitted the lease, entry and ouster of the fictitious plaintiff. The judgment amounted to a “ recovery of the possession (not of the seizin or freehold), without prejudice to the right, as it might afterwards appear, even between the same parties. ” Atkins v. Horde, 1 Burr. 114; Jackson v. Dieffendorf, 3 Johnson, 270 .

By the structure of such an action and the pleadings herein, the title of the freehold was never directly put in issue, but only a trespass committed by John Doe on Richard Roe in forcibly expelling him from a term of years. Nor could it be decisive between the real parties, because it was always in the power of the party failing, whether claimant or defendant, to bring a new action by the employment of other fictitious parties. Adams on Ejectment, 351 (marg.); Miles v. Caldwell, 3 Wall. 35 ; Sturdy v. Jackaway, 4 Wall. 174 ; Walsh v. McIntyre, 68 Md. 420; McKenzie v. Renshaw, 55 Md. 299 . But these reasons cannot be made to apply to the action of ejectment as it