
    Thaddeus Allen versus Thomas Carter.
    A judgment against the tenant in a writ of entry brought in the name of one of several co-heirs at their joint expense, to try the title, will not enure to the benefit of another of those co-heirs in an action of trespass for mesne profits.
    A constructive ouster by an heir claiming the whole estate under a supposed devise, will not sustain an action of trespass brought against him by a co-heir.
    Trespass for mesne profits. The parties stated a case.
    John Ballard senior owned the estate. He died March 2, 1824, testate, leaving six heirs at law, the wife of the plaintiff being one of them and the wife of the defendant another. At the time of his death, the defendant, with his family, occupied the estate ; and he continued so to occupy until September 23, 1824, supposing that he owned, in right of his wife as one of the residuary legatees, one third of the estate. He then pur chased the other two thirds of the other residuary legatees, and supposed he was the lawful owner of the whole ; and from that time he claimed exclusive right to the whole under the will and the deeds. It was not until after he had made this purchase, that any intimation was given him that the other children of the testator supposed he died intestate as to this messuage ; and no demand for rent or claim of interest in this estate was made by the plaintiff until October, 1825, when he asserted and claimed his wife’s right therein. The heirs whose rights were denied having bound themselves to pay, by contribution in proportion to their several interests, the costs of all suits which might be necessary to establish their several titles, by mutual agreement between them a suit was brought on July 24, 1826, by the minor children of William Ballard, a son of the testator, to recover from the defendant one sixth part of this estate ; and on August 20, 1827, it was determined that the testator died intestate as to this messuage, and the defendant was defaulted in that action. (See 5 Pick. 112.) In February, 1828, the defendant petitioned for partition, neither the plaintiff nor any other person objecting, and commissioners were appointed, whose return, dated June 5, 1828, was accepted by the Common Pleas in July following. On March 3, 1828, the plaintiff received notice that the defendant was holding only as a tenant in common, and therefore he would pay no rent. Prior to the meeting of the commissioners, neither the plaintiff nor his wife ever took formal possession of any part of the messuage, or entered thereon declaring their intention to make an actual entry ; but both were served with an order of notice on the petition for partition, and at the meeting of the commissioners both the plaintiff and the defendant were present with them on the estate, took part in the proceedings, and the plaintiff, in right of his wife, claimed one sixth part of the estate. The defendant never received any rent from the estate, but occupied it from the second of March, 1824, to the time of the partition.
    The questions were, whether the plaintiff was entitled to recover any rent in this action ; and if so, for what length of time.
    
      M'arch20th
    
    
      Sumner contended that the exclusive claims made by the defendant on the 2d of March and 24th of September, 1824, were disseisins of the plaintiff,
    which gave him a right to demand mesne profits ; that under the agreement made by the . heirs, the judgment in the writ of entry would avail this plaintiff as much as if he had been the immediate demandant; and that he was entitled to the mesne profits from March, 1824, to the time of the partition in 1828. Adams on Ejectm. 56, 335; Fishar v. Prosser, Cowp. 217; Cummings v. Wyman, 10 Mass. R. 464; Kennebeck Purchase v. Springer, 4 Mass. R. 416; Jackson v. Preston, 13 Johns. R. 406; Jackson v. Ellis, 13 Johns. R. 118; Emerson v. Thompson, 2 Pick. 487; Baron v. Abeel, 3 Johns. R. 475.
    
      Sohier, for the defendant.
    
      April 6th
    
   Per Curiam.

We do not see any principle on which the action can be maintained for any sum.

Trespass for mesne profits does not lie. The plaintiff shows no judgment for possession; he brought no action ; and he wras not privy to the writ of entry brought by the other heirs. An agreement to abide the event of a suit does not create a privity.

The common action of trespass does not lie, as the plaintiff waF not *n possession, actual or constructive. There was no pernancy of profits.

It is said that the possession of the defendant under a supposed devise, claiming the whole estate as against the heirs at law, amounts to an ouster. It may for some purposes ; as to sustain a writ of entry; but such a fictitious ouster is not sufficient to support an action of trespass. The plaintiff had never had possession.

The defendant had a right to be in possession as a tenant in common, and the plaintiff’s only remedy, if any, would be an action for use and occupation. But there are difficulties in regard to that, as appears by the case of Sargent v. Parsons, 12 Mass. R. 149.

Plaintiff nonsuit. 
      
       See Towle v Ayer, 8 N. Hamp. R. 63
     