delivered the opinion of the court.
In this case, the plaintiffs sue to recover possession of a tract of land, together with damages, for the illegal dispossession' by the defendant. They allege, that they had been in possession for many years as joint owners, until they were forcibly dispossessed by the defendants. They lay their damages at ten thousand dollars, for which they claim judgment as well as for restoration to possession.
The defendant denies these allegations, and avers, that he has been in quiet possession for more than twelve months, under a purchase from the United States, and that he holds the land in good faith, and has made valuable improvements. There was a verdict in favor of one of the plaintiffs, and against the other; and from a judgment rendered on said vei^*ct’ ^01' t^e possession of the premises, and for damages assessed by the jury, the defendant has appealed,
The appellee has' moved to dismiss the appeal, on the ground that there is no statement of facts, and that the cer- ° , , „ , tificate of the clerk is insufficient to show, that all the evidence upon which the case was tried in the first instance, is now bef0re us. We are of opinion, that the certificate is not 1 71 sufficient to enable us to inquire into the matters of fact involved in the controversy. But the bill of exceptions in ^le record enable us to examine the questions of law, which arose during the trial. The appeal is therefore maintained.
From the first bill of exceptions, which has been brought our notice, it appears, that the defendant offered in evidence, patents for i the land in controversy, which were rejected ; and his counsel contended, that although as evi-*419deuce of title, they may have been inadmissible in a posses-sory action, yet, they ought to have been read to show the motives of the defendant, and in mitigation of damages, in a mixed action like the present. On the other hand, it is urged, that it does not appear from the bill of exceptions, that the patents were offered for any other purpose than to show title. It appears to us, that if the title papers in question, _ .... „ J 1 were admissible, for any purpose under the pleadings, they ought to have been read subject to the instruction of the court, that'they were to be considered by the jury only for such purpose. So far as the present action is merely posses-sory, it is clear, the patents could not be used as evidence' of title. But the plaintiffs sue for vindictive damages, for a 1 ° forcible dispossession ; and in mitigation of damages, the defendant might well show, that he holds patents for the land ; which, although affording no justification for forcibly entering on the premises, yet might tend to explain his motive, and present his acts in a more favorable light to the jury called on to assess the damages. - The good faith is expressly alleged in the answer, as well as his possession under the patents. The court., in our opinion, erred.
in a possesso-sue^patints or title papers arc inadmissible as evidence; but {¡^“recovery of, possession, clamases for a session^ dlS'hen-™a-v.1:1 e rea<110 the jury, to ex* plain the motive party acted,'and of where B and W sue, in a mix-cover possession anforcibifeScih-tíiey68S1 °”alleg-e themselves to be j//!/S/>wneri/ ^rVunagefand these allegations by the 'answer, jnstraetthejSry* that if the evidence showed thatB had such ?Vocdd810Ien<it]e !lim t0 «verdíot action, and there in'faTOr'o^wt they^ might find jror 13 and against W. This dohs the allegations/ If the answers °0 certam/ntor-The next bill relates to the charge of the judge to the jury. They were instructed, that if the evidence showed that Baily had such a possession as would entitle him to a verdict in a possessory action, and there was no evidence in favor of Wells, they might find for Baily, and against Wells,
The plaintiffs in their petition, allege themselves to be in possession as joint owners, and they join in the claim for , „ . . , , , , damages. These allegations are put at issue by the defendant’s answer, and that was the issue submitted to the jury. Damages were claimed for the violation of a right claimed jointly by the plaintiffs, and it appears to us the court erred in charging the jury that either could recover without evidence in support of that allegation. ri ®
It is unnecessary to inquire whether the court erred in ordering the plaintiffs to answer certain interrogatories annexed to the defendant’s answer, because he has not appealed, and because he answered on the orders of the *420court; and if the answers on the part of the plaintiffs were not called for by the interrogatories, they might be disregarded by the jury under the instruction of the court.
rogatories of the Ae^order n.ot called ioi" by the interrogatories, regarded by the jury, under instructions from the court.It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the verdict set aside, and it is further ordered, that the case be . . remanded for a new trial, with instructions not to reject the patents offered by. the defendant, and to abstain from charg-ju„ qle iury as stated in the bill of exceptions above men-o j j i tioned, and that|the appellee pay the costs of the appeal.