The opinion of the court was delivered by

The principal question in the case is, whether the

plaintiff, having parted with his title in the premises during the pen-dency of the action, but acquired it again before the trial, is thereby deprived of his right of recovery ?

In Burton v. Austin, 4 Vt. 105, which was ejectment by a mortgagee, the title, during the pendency of the action, had passed to the mortgagor by a redemption of the land on a decree of foreclosure in chancery. The plaintiff having no title at the time of trial, it was clear he should not recover the land; but having had a good cause of action at the commencement of the suit, he claimed to recover nominal damages for the original trespass and his costs; and the county court allowed him to do so. This decision of the county court was in conformity to acknowledged principles in other actions; but the supreme court reversed the decision, and rendered judgment for the defendant; holding that damages, in the action of ejectment were not a distinct ground of action, but were merely accessory to the recovery of the land, — that if the land was not recovered, damages could not be. This decision does not seem to be in accordance with the English doctrine.

The English action of ejectment appears to have been originally devised, to enable the tenant of a leasehold estate to recover damages for an unlawful dispossession; and.for a long period damages alone were recovered. Afterwards the plaintiff was permitted to recover, not only for the trespass, by which he had been dispossessed, but also the term itself of which he had been deprived; and upon the judgment a writ of possession issued, as well as an execution for damages. The object of allowing the additional recovery of the land was to make the remedy more complete; and there does not seem *89to be any very obvious reason, why such additional recovery of the land might not be dispensed with,where the facts of the'case required it. I take the English law to be well settled, that a plaintiff in ejectment may recover damages for the ouster, although at the time of trial the term, of which he had been dispossessed, may have expired ; and that such recovery of damages, after the termination of the plaintiff’s title, lays the foundation for an action for mesne profits, in which the plaintiff recovers for the use and occupation by the defendant, during the continuance of the plaintiff’s title. Adams on Eject. 6, 34. Co. Lit. 385 a. 3 Bl. Com. 200. Bac. Ab., Ejectment F. Thrustout v. Grey, 2 Str. 1056. Doe d. Morgan v. Bluck, 3 Camp. 447. Robinson v. Campbell, 3 Wheat. 212. Jackson v. Davenport, 18 Johns. 295. Murray v. Gavretson, 4 Sergt. & R. 130. Brown v. Galloway, Pet. G. C. 291.

The English rule seems best calculated to subserve the purposes of justice. In Burton v. Austin there was, perhaps, no great hardship on the plaintiff, who might have been pursuing two remedies on his mortgage unnecessarily ; but it is easy to conceive of cases* under the law there laid down, in which the most glaring injustice would be done. Where the title of the plaintiff in ejectment is a term, say of three or five years, of which he has been dispossessed at its commencement, if the trespasser upon his rights, by use of the numerous ingenious devices for increasing the law’s delay, can succeed in postponing a final trial until the expiration of the term, it is obvious the result will be, that the defendant will freely enjoy the fruits of his trespass for the whole period, without account, and the plaintiff will not only lose the whole use of his land, but will moreover be compelled to indemnify the defendant for his misconduct, by paying his bill of costs. It is not intended to say, that there may not be reasons, arising out of the language of our statute, for sustaining the decision in Burton v. Austin; and perhaps it is now too late to question its authority. But, for the reasons already given, I do not think it ought to be extended to embrace cases not coming strictly within its doctrine.

The doctrine, that a plaintiff in ejectment, in order to recover the land, must show a title at the time of trial, is well established, and is founded on the clearest principles of justice; for otherwise the defendant might be dispossessed, after he had become the real owner; *90and the judgment for the plaintiff, being conclusive between the parties as to the right, would fix the title in the plaintiff, though not the real owner. None of the cases in this state have, however, gone the length of declaring, that the plaintiff shall be precluded from a recovery, because of a temporary suspension of his title during the pendency of the action ; and neither the principles of law, nor the ends of justice, appear to demand such a decision. The substantive ground of the action of ejectment is the original dispossession of the plaintiff by the defendant; and the plaintiff’s right of recovery is founded, as in England, upon his title at the commencement of the suit. In order to protect the rights of the defendant, it is also necessary, that the plaintiff should have title at the time of the judgment; and if the plaintiff have title at that time, a judgment in his favor cannot be justly complained of by the defendant.

In this case, it is admitted, that the defendants ousted the plaintiff and held the possession for a time unlawfully, and that the. plaintiff had a perfect title at the time of trial. A judgment against the defendants will do them no injustice. It is admitted, they have no right to the possession and that the plaintiff has. Why, then, should not the judgment be according to the right of the case ? A judgment for the plaintiff is necessary, not only to do justice in regard to the damages, but also to preserve the title in the true owner; for if there be judgment for the defendant, it will, in effect, pass the title from the true owner to a mere intruder, — the statute making the judgment in ejectment conclusive of the title between the parties.

The fact, that the plaintiff, during the pendency of the action, took possession, whether forcibly, or otherwise, cannot purge the previous trespass of the defendant; and no damages having been recovered for rents and profits arising subsequent to the termination of the plaintiff’s original title, the verdict is unobjectionable in that respect.

The result is, that the judgment of the county court is affirmed.