#### Thrasher vs. Tyack and others.

May 15.

Where in an action to recover dower, under the statute,a verdict was rendered against three defendants, assessing damages for withholding the dower, it was *error to*take judgment for the damages against *one*of them only.

Where the action for dower is against other persons than the heirs of the deceased hnsband, the damages for *mesne*profits are to be estimated only from the time the dower was *demanded*of them.

A general exception to the entire charge of the court will not avail a party unless the entire charge is erroneous.

This court sometimes permits a judgment to be amended so as to conform to the verdict, where it is satisfied upon the whole record that justice has been done; but not otherwise.

APPEAL from the Circuit Court for *Iowa*County.

The plaintiff sued for dower, as the widow of E. B. Thrasher, deceased. The defendants were *John Stanley*and *Mary Tyach*and *Joseph H. Tyach.*The case is stated sufficiently in the opinion of the court.

*AFbott, Gregory*<S* *Finney,*for appellant

*G. L. Frost,*for respondent

*By the Court,*

Cole, J.

There is a manifest discrepancy between the verdict and judgment in this case. The action *257was brought by the respondent to recover an estate in dower, to which she claimed she was entitled as widow of B. Thrasher, deceased. It was admitted on the trial, that the appellants were in possession of the premises, and had been for two years previous to the commencement of the suit. The jury found in favor of the respondent, that she was entitled to the possession of the premises set forth in the complaint, and assessed her damages for the unlawful withholding of them at the sum of *$144,*subject to the deduction of a certain amount of taxes paid by the appellants. Thejudgment was for the recovery of the premises as a dower estate, and that the respondent have and recover of the appellant *Joseph H. Tyack*the entire amount assessed for mesne profits, with costs.

We are at a loss to understand why the judgment for the amount of mesne profits was taken in this form, instead of being against all the appellants in conformity to the verdict A joint possession of the premises was proved or admitted on the trial. And the natural and proper construction of the verdict is, that the jury found that the respondent was entitled to recover from all the appellants her damages for the unlawful withholding of the premises. Why then was not the judgment for damages taken against all the appellants, instead of being against one, as it now is ? When the verdict for mesne profits is against several defendants, can the plaintiff take judgment against one alone ? And if he does, can the defendant against whom the recovery is had for the full amount, take advantage of such a material variance between the judgment and verdict? It appears to us that he can. It is true an action for mesne profits was, under the old common law practice, in form an action of trespass, because it was consequent upon and supplemental to an action of ejectment, and was therefore of the same species with it. 1 Chitty’s Plead., 194; Adams on Ejectment, 448; *Howland vs. Needham,*10 Wis. R., 490. However, the character and incidents of an action of trespass were not always given to it, particularly where provision was made that a plaintiff might, by a suggestion upon the record, recover mesne profits substantially in the same manner he would dam*258ages in *assumpsit*for use and occupation. R. S. 1849, chap. 106. On the contrary, in such a case the defendant has the right, if he has in good faith made permanent improvements upon the land, to set off their value to the amount of the plaintiff’s claim. Sec. 44, chap. 106. The same right is secured to the defendant in other states, as will be seen in the following cases: *Jackson v.*Loomis, 4 Cow., 168; *Russel vs.*Black, 2 Pick., 505; *Hylton vs.*Brown, 2 Wash. C. C. R., 665.

In *Murray vs. Gouverneur et al.,*2 Johns. Cases, 488, Kent, J., says: “ The action for mesne profits is a liberal and equitable action, and will allow of every kind of equitable defense.” And when a party, instead of bringing his action of trespass for mesne profits, substitutes a suggestion upon the record, or recovers in the same suit his damages for the unlawful withholding of the premises, as' is now permitted by our statute (chap. 141, sec. 16, R. S., 1858), we think he cannot treat the action as having all the incidents of one *ex delicto. '*It seems to partake so far the nature and character of an action *ex contractu,*as to forbid the plaintiff) where there is a joint verdict against several defendants, from taking judgment for the full amount against one. We deem the practice therefore in the present case irregular.

It might be claimed that the judgment should be amended so as to make it conform to the verdict in this particular. We have permitted, in some cases, a judgment to be amended, when we were satisfied, upon the whole record, that justice had been done, and that a new trial could not change the result. In the present case there is an obvious error in the charge of the court as to the proper rule of damages.

The court instructed the jury, among other things, that the respondent was entitled to recover her damages for rents and profits during the time the defendants had received them. As there was a general exception to the entire charge, we could not reverse the judgment on account of the error in respect to the rule of damages, unless the whole charge was objectionable in point of law. For we have frequently held that such an exception will not avail a party unless the entire charge is erroneous. But we still think this error in the charge may be considered in determining the question *259as to whether the judgment should be amended. It is by no means certain that under proper instructions the would obtain another verdict for such an amount of mesne profits. The statute declares that when an action is brought by. the widow against the heirs of her husband, to recover dower, she shall have her share of the mesne profits from her husband’s death; but in actions against other persons, only from the time of her demanding her dower. See. 25, chap. 89, R. S., 1858. This provision was doubtless overlooked by the circuit court.

We do not, therefore, think the judgment should be amended, in order to obviate the objection to it, and then permitted to stand. The justice of the case and rights of the parties would seem to be more fully subserved by a new trial.

The judgment of the circuit court is therefore reversed, and a new trial ordered.