#### CHARLES W. BRADLEY vs. JAMES McDANIEL.

One coming in as under-lessee to the defendant in an action of ejectment, during the pendency of that action; is bound by the proceedings had therein, and, consequently, is-liable-to-an action for mesne profits.

Action of trespass guare clausum fregit for mesne profits, tried before Elias, Judge, at the Pall Term, 18ejo, of New Hanover Superior Court-

Plaintiff showed in evidence a deed conveying the premises from one Bowen to Messrs. Wright and Miller, and from them to himself. lie then proposed to show the record of a recovery in ejectment, wherein lie was lessor of the plaintiff', and said Bowen was defendant; hut his Honor held that it was not competent, unless he first showed a privity between the defendant in this action and the defendant in the action of ejectment; whereupon the plaintiff showed, that after the said action of ejectment was instituted, and while it was pend*129ing, Bowen conveyed the premises, by deed, to one Johnston, who let the same to one Peterson, who let them to this defendant. The record was then received, (the defendant excepting,) and it appeared that the plaintiff in that suit had recovered his term, and had judgment for costs; also, that a writ of possession had issued thereupon, under which the defendant in this suit had been put out of possession and the present plaintiff put in, before this action was brought.

Defendant offered to show that Johnston, under whom he entered, had an older deed and a better right to the land in question than -the plaintiff; but his Honor declined receiving the testimony. He instructed the jury that the plaintiff was entitled'to the fruits of his recovery in ejectment, and that all persons coming in under the defendant, after the commencement of the action of ejectment, were in privity thereto, and líound by the recovery therein. To tips instruction defendant again excepted. Yerdict for plaintiff. Judgment and appeal.

Bryan, for plaintiff, with whom was IF". A. Wright, argued as follows:

There was evidence to satisfy the jury that McDaniel came into possession under Johnston, who claimed under the defendant in the ejectment, and coming in “pendente lite” lie is responsible in this action.

The action for mesne profits is a necessary consequence of the recovery in ejectment, and even if the defendant have the superior title, he is not permitted to shew it in this action, Benson v. Matsdorf, 2 Johns. Rep. 369.

The action is in form trespass vi et armis in which the possession is in controversy, and the judgment in ejectment conclusively establishes the plaintiff’s title to the possession from the demise laid in the declaration.

The defense does not distinguish between ejectment and this action. If the defendant had, or claimed under, superior title, he might have applied to the Court, pending the action of ejectment, and upon a proper case being made, he might *130have been permitted to defend, &c.; the plaintiff then could have determined whether he would proceed in his action.

lieicl and JBcmles, for defendant.

Pearson, J.

The law is as it,was laid down by his Honor, and for the reasons given by him. See 3 Pliill. on Evidence, 814, and other text books, and the cases cited.

Plaintiffs in ejectment and detinue would be defrauded of the fruit of their recoveries, unless a third person, who, pending the action, takes the place of the defendant in regard to the possession of the property, (although he is no party to the action,) be considered so far a privy as to be bound by the proceedings in respect to the right of possession. Hence, when a writ of possession issues after a recovery in ejectment, all persons, as well those not parties, as the party defendant, are put off the land, so that the plaintiff may have the fruit of his recovery. This is every day practice. So, if, pending an action of detinue, the defendant puts the “property into the possession of a third person, under the execution, the sheriff takes the property wherever he finds it, and delivers it to the plaintiff. This is also familiar practice.

The action of trespass for mesne profits is a contination or elongation of the action of ejectment, introduced as a matter of convenience and for the purpose of saving time; Miller v. Melchor, 13 Ire. 439 ; consequently, one who takes possession of the premises, pending the action of ejectment, although he does not make himself a party of record, is a privy in rcspect to the Us pendens, and stands “ in the shoes” of the tenant who was in possession when the action was brought. Whether it be necessary, in order to make the recovery in ejectment evidence against one who takes possession lite pendente, to show a connection between the defendant in the action of ejectment, and the person who takes possession lite pendente, we express.no opinion.' In our case, such a connection is shown; for the defendant in this action, is a sub-lessee of Johnston, to whom the defendant in the action of ejectment had convey*131ed the premises, and in regard to whom he held possession as a quasi tenant at will, or occupier by his permission; so it amounts to a mere shifting' of the possession from one tenant of Johnston to another.

Pee Curiam.

Judgment affirmed.