*688Dissenting Opinion.
Rabb, J.I do not concur in the mandate of the court in directing a judgment against appellee Essington on the general verdict. I think it manifestly appears from the record before us that such judgment will operate as a rank injustice to said appellee, and that the case is one requiring this court, in the exercise of its discretion, to direct a new trial; Sinker, Davis & Co. v. Green (1888), 113 Ind. 264; Buchanan v. Milligan (1886), 108 Ind. 433; Murdock v. Cox (1889), 118 Ind. 266; Wendel v. Cleveland, etc., R. Co. (1908), 41 Ind. App. 460; Richey v. McKay (1905), 36 Ind. App. 539.
In my view, all those averments in the complaint, with reference to the conveyance by appellee Essington to her coappellee, Indianapolis Northern Traction Company, of the land upon which the trespass is alleged to have been committed, the intention of tiie parties in making such conveyance, and the averment that, after the execution of the conveyance, Essington authorized the traction company to take possession of the land, are mere surplusage, presenting no issuable facts, and are -therefore not established by the general verdict.
The substantive averments of the complaint, the issuable facts charged, which the general verdict in favor of appellant established as true, are the facts that appellant was tenant of appellee Essington, in the lawful possession of the premises, and that “defendants unlawfully entered upon the premises, tore down the fences, destroyed th<? crops,” etc. These averments charged a joint trespass, and made a good ease against both appellees, but clearly did not authorize a- judgment against either of the parties for separate acts of trespass committed by the other, although it might appear that each of the two parties had separately trespassed upon appellant’s possession.
Here the general verdict finds that appellee Essington *689alone committed the acts of trespass charged, or some of them; that is, that Essington “unlawfully entered upon appellant’s possession, tore down the fences, permitting the stock to escape, destroyed the crops,” etc.
Among other interrogatories submitted to the jury and the answers were the following: “State what, if any, fences on said real estate, defendant Essington tore down, through which any stock of said plaintiff escaped, after taking possession thereof by the Indianapolis Northern Traction Company? A. None.” “What occupancy or control did defendant Mary E. Essington exercise over said real estate after she conveyed the same to her codefendant, except to take some timber off of the right of way thereof? A. None.” “If defendant Mary E. Essington cut some timber off of the right of way of said real estate, was she in any way assisted by the employes or servants of defendant ? A. No, sir. ’ ’
It fe not charged in the complaint that appellees or either of them cut and removed timber from the premises, and the cutting and removing of timber is not relied on in any way as causing the injury sued for, and would clearly entitle appellant to merely nominal damages, if such were the basis of the action.
The answers to these interrogatories are clearly antagonistic to the general verdict against appellee Essington, and would require an affirmance of the judgment, were it not for the answer returned by the jury to the fourth interrogatory submitted to it, which was as follows: “Did defendant Mary E. Essington, in common and with concertive action and with defendant Indianapolis Northern Traction Company, enter upon and take possession of said real estate so conveyed by her to said defendant, and plow up and dig up the same, and construct a railroad thereon? A. Yes.” The answer to this interrogatory is plainly contradictory to those already referred to, and under the strict *690technical rules that forbid the court to consider contradictory answers to interrogatories on a motion for a judgment on answers to interrogatories, notwithstanding the general verdict, requires the reversal of the judgment by this court. But I think it quite manifest that this answer to the fourth interrogatory submitted to the jury was the result of a misconception on its part of the purport of the interrogatory. This is made quite clear by the answer to the fifth interrogatory, which was as follows: “If your answer to the foregoing interrogatory is ‘yes,’ state when and what action said defendant Mary E. Essington did and performed in common and with concertive action with her codefendant?” This is answered as follows: “Removed timber about May 1, 1903.”
I think it is thus made apparent that what the jury intended to find by the answer to the interrogatories, and all it intended to find as against defendant Mary E. Essington, was that after she conveyed the premises to the traction company, she, without the traction company’s having anything to do with it, entered upon the premises and cut down and removed some timber therefrom, and that all of the injurious acts charged in the complaint to have been done were done by the traction company alone, and that the general verdict was returned against appellee Essington, because she had sold and conveyed the property in question to the traction company, and had received from it the consideration expressed in the deed.
I think enough appears from the answers to these interrogatories to show clearly to the court the real state of the case, and that all that Essington did was to sell and convey to the company the tract of land in question. Such sale and conveyance by her created no liability on her part for any act of the traction company. She had the right to sell her interest in the land, and to convey it by warranty deed, and her deed conveyed to the company no right whatever, and *691afforded no authority to the company wrongfully to enter upon appellant’s possession.
It appears from the averments of the complaint that the traction company took the conveyance with full knowledge of all of appellant’s rights, that he was the tenant of appellee Essington, and by the terms of the statute, when appellee company took possession of the land appellant’s possession was its possession, and appellant became the tenant of the traction company, with the same rights against the traction company that he had against the original landlord. §8061 Burns 1908, §5215 R. S. 1881; Lindley v. Dakin (1859), 13 Ind. 388; Page v. Lashley (1860), 15 Ind. 152; Kellum v. Berkshire Life Ins. Co. (1885), 101 Ind. 455; Swope v. Hopkins (1889), 119 Ind. 125; Ream v. Goslee (1898), 21 Ind. App. 241.
The consideration received by Essington for the conveyance of the land is presumed to be the consideration for her interest in the premises, and not to represent and pay for something which she had no right or authority to sell, and which she did not undertake to convey. After she conveyed the land to the traction company, before it could have any right to enter upon the premises as against appellant, it was its duty to acquire, in some appropriate way, the right as against him, and until it did so an entry upon his possession without his consent was a trespass, but not one for which the original landlord would be liable.
In my judgment, from the facts made apparent by the answers to interrogatories, it is clear that at most appellant had a right to but nominal damages against appellee Essington, and that therefore the direction to render judgment upon the general verdict is not a proper mandate.
Myers, J., concurs.