PLEADINGS, PRACTICE AND PEOCESS AT LAW. 2387

title to the premises and right of possession and the amount of damages
claimed by the plaintiff, but any defendant may refuse to appear or file a
disclaimer of title to the land or any part thereof, in which case the plaintiff
shall recover judgment against the defendant so disclaiming or refusing
to defend for the land or so much thereof as shall not be defended, but the
costs shall be subject to the discretion of the court, and the trial shall then
proceed against the party making the defense under the rules and practice
of the court as the same existed prior to the year eighteen hundred and
seventy, except so far as the same are changed by this article, and the
plaintiff shall also recover as damages in this action the mesne profits
and damages sustained by him and caused by the ejectment and detention
of the premises up to the time of the determination of the case.

In order to recover in ejectment, plaintiff must prove that it has title and right
of possession to land described in declaration. Abandonment of portion of railroad
right of way not made out. Green v. Pennsylvania R. B. Co., 141 Md. 132.

The plaintiff may not claim rent or other profits in ejectment and, upon a failure
to recover, recover them in another suit. Damages recoverable as well in ejectment
as in trespass. See notes to sec. 98. Strathmqre Min. Co. v. Bayard Co., 139 Md. 370.

Under this section action of ejectment is resolved into a simple inquiry into
validity of plaintiff's claim to possession of land, and the judgment is conclusive.
Changes in law of ejectment made by this section. Brooke v. Gregg, 89 Md. 236.

Under act of 1872, ch. 346, plaintiff in ejectment may recover mesne profits and
damages for ejectment and detention of premises, as well as land itself. As respects
rents and profits, ejectment affords as ample relief as could be obtained in equity.
Hecht v. Colquhoun, 57 Md. 567. And as to mesne profits, see Johnson v. Hines,
61 Md. 132.

While secs. 76 to 90 relating to ejectment speak uniformly of land only as
recoverable in ejectment, that action will lie for any estate or interest in land, such
as an upper room in a building, a pew in a church, a coal mine, etc. Ejectment,
however, will not lie for incorporeal right, or interest in land created by license.
Nicolai v. Baltimore, 100 Md. 585.

Plea of " not guilty " admits possession and ejectment, and puts in issue the title
to premises, right of possession, and amount of damages. Admission of evidence
held not reversible ertor. Abromatis v. Amos, 127 Md. 397, 400; Mullen v. Brydon,
117 Md. 558.

An instruction which informs the jury as to the legal effect of a plea of " not
guilty " is proper. Wallis v. Wilkinson, 73 Md. 131.

The act of 1872, ch. 346, only authorizes a judgment by default against certain
defendants where others have appeared and made defense, so that as against them
trial can proceed. Judgment by default held to be unauthorized. Old ejectment
practice. The act of 1872, ch. 346, criticised. MacKenzie v. Renshaw, 55 Md. 296.

For cases involving the recovery of mesne profits prior to the act of 1872, ch. 346,
see Tongue v. Nutwell, 31 Md. 302; Mitchell v. Mitchell, 21 Md. 585.

See sec. 26 and notes to sec. 78 and to art. 75, sec. 153.

An. Code, sec. 72. 1904, sec. 72. 1900, ch. 559, sec. 69A.

77. An outstanding mortgage shall not prevent the real owner as mort-
gagor of said property from maintaining an action of ejectment against
any person or persons other than the mortgagee, or his, her or their assigns.
See notes to sec. 76.

An. Code, sec. 73. 1904, sec. 73. 1888, sec. 70. 1872, ch. 346, sec. 2.

78. In all cases between landlord and tenant, as often as it shall hap-
pen that one-half year's rent shall be in arrear and the landlord or lessor
to whom the same is due hath right by law to re-enter for the non-payment
thereof, such landlord or lessor shall and may, without any formal demand
or re-entry, serve a copy of a declaration in ejectment for the recovery of the