
    Richmond.
    Purcell & wife & als. v. Wilson.
    1847. April Term.
    
    1. A testator says: “I give and bequeath to my loving wife the land which her father gave me, being, &c. I also give unto my said wife the following slaves, viz: Winney, &c., during her natural life, to be disposed of at her own discretion, either by deed or will among my children.” Held : The wife has a fee in the land.
    2. The possession of one coparcener or tenant in common being the possession of all, none in possession of the whole subject can avail themselves of such possession, as a defence under the statute of limitations, against the rest, without an actual disseisin or ouster of their coparceners or cotenants.
    3. A special verdict in a writ of right, where the defence is the statute of limitations, must find either an actual disseisin or ouster of the demandants, or those under whom they claim, or facts which in law constitute such actual disseisin or ouster.
    4. Though a great lapse of time, with other circumstances, may ' warrant the presumption of a disseisin or ouster by one coparcener or tenant in common, of another not labouring under disabilities, this presumption is a matter of evidence for the consideration of the jury, and not a question of law for the decision of the Court upon a special verdict.
    5. The act 1 Rev. Code, ch. 118, § 1, p. 468, which authorizes the recovery of damages in writs of right, intends such damages as may be recovered in actions of trespass for mesne profits. And as from the form of the pleading, the statute of limitations applicable to the mesne profits, cannot be pleaded, the tenant may give it in evidence upon the trial; and the demandant’s recovery of mesne profits will be for five years next before the bringing the writ of right down to the recovery of possession.
    This was a writ of right brought in the Circuit Court of iFauquier, by William F. Purcell and Mary his wife, and William B., Margaret and Julia Harrison against Archibald Wilson. The writ was issued on the 14th of June 1837, to recover an undivided fifth part of five hundred acres of land in the county of Fauquier.
    
    The, mise was joined in the usual form; and on the trial of the cause at the May term of the Court in 1838, the jury found a special verdict, the important facts of which are the following :
    
      Peter Waggoner, under whom both parties claimed, made his will and died, leaving his wife Sinah, and children Beverley, Sinah, Ann, Sarah, Peter and Mary Elizabeth, surviving him. In the clause of his will relating to the land in controversy, he says: “ I give and bequeath to my loving wife the land which her father Col. Daniel M’Carty gave me, being one moiety of a thousand acres given at the same time to Dr. Jenifer and myself, lying in the county of Fauquier just below Ashby’s gap. I also give unto my said wife the following negro slaves, viz : Winney, Nathan, Bill, Williamson and Sinah, children of the said Williamson and Winney, during her natural life, to be disposed of at her own discretion, either by deed or will among my children Beverley, Sinah, Ann, Sarah and Peter.”
    
    The widow took possession of the land, and held it until 1809, when she died, having made a nuncupative will, which was admitted to record. By this will, she directs that the land devised to her by her husband’s will, shall be divided between her four daughters, Sinah, Mary, Ann and Sarah. At the time of her death these four daughters and her son Peter were alive. Beverley had died in her lifetime, leaving an only child Mary E. Waggoner, who in 1816 married Russell B. Harrison; she then being seventeen years of age. And she died in 1822, leaving the four last named demandants her children surviving her. These children were not of age when this writ of right was brought.
    In October 1809, Mary E. Waggoner, by her next friend, brought a suit in the High Court of Chancery against the executor, and the other heirs of Peter Wag-goner, claiming among other things, one fifth of the tract of land in controversy. This suit was dismissed in 1814 for want of prosecution; the plaintiff being still an infant.
    On the 18th of June 1810, three of the daughters of Peter and Sinah Waggoner being then married, they with their husbands and their brother Peter, and their unmarried sister, executed a deed whereby, after reciting the claim of Mary E. Waggoner, which she was then prosecuting in the High Court of Chancery to recover a proportionable part -of the land, they conveyed to the tenant Archibald Wilson, the above mentioned tract of land containing five hundred acres ¡more or less; but incase the said Mary E. Waggoner should recover a proportion of said land, in right of her father Beverley Waggoner, then they thereby conveyed to the said Wilson five sixths of the said tract of land : “ To have and to hold the said tract of land, or five sixths thereof, as the case may be, to him and his heirs forever.” And it concludes with a warranty of “ the said tract of land, •or five sixths thereof, as the case may be.”
    On the 19th of June 1810, Wilson conveyed to Berkeley Ward three fifths of this tract of land, for the purpose of securing a part of the purchase money due to the husbands of the three married daughters. And on the 26th of October 1813, Ward the trustee, and the cestuis que trust united in ¡a deed, by which they released the trust. This deed recites that part of the purchase money had been retained on account of the claim of Mary E. Waggoner ; and that her suit having been decided against her, the whole purchase money was then paid. And it warrants the title of the whole tract against the claim of Mary E. Waggoner.
    
    The special verdict finds that the tenant Wilson held actual possession of the whole of the tract of land aforesaid, from the 18th of June 1810, continually, up to the time of the trial; but it does not in terms find that he held adversary possession.
    
      In September 1831, the demandants filed their bill in the Circuit Court of Fauquier against Archibald Wilsoti, in which they claimed an undivided sixth part of tiie land aforesaid. In this suit they derive their title from Sin ah Waggoner, the widow of Pater Waggoner; and it is still pending.
    The jury concluded their special verdict by an alternative finding of one fifth or one sixth of the tract of land, as the Court might be of opinion the demandants were entitled, if they were entitled to recover at all. And if the Court should be of opinion, that the demandants had a right to recover in this action for the rents and profits from the death of their mother in 1822, they found 800 dollars; or if they were entitled to recover the rents and profits of the said land for five years only prior to the suing out of the writ in this case, then they found 250 dollars damages. And if upon the whole matter the law was for the tenant they found for him.
    Upon the special verdict, the Court below held that the deed of the 18th of June 1810, and the tenant’s entry under it, operated a disseisin of the ancestor of the demandants r and that consequently this suit was barred by the statute of limitations. Judgment was therefore rendered for the tenant, and the demandants applied to this Court for a supersedeas, which was granted.
    
      C. & G. N. Johnson, for the appellants, insisted:
    1st. That whatever construction was given to the will of Peter Waggoner, the demandants were entitled to a part of the land. If the will gave the land to the widow for life, with the power of appointment among the five children mentioned in that clause, then as the widow had made no valid appointment, these five children were entitled ; and the demandants as representing one of them, were entitled to a fifth. Sugden on Powers 394; Knight v. Yarbrough, Gilm. 27. If the will gave the widow a fee, then as her heirs they were entitled to a sixth.
    
      2d. That to sustain the defence of the statute of limitations. the tenant must make out a continued, actual, adversary possession. This was a question of fact, which had not been found in terms by the special verdict; and it must therefore clearly appear from the facts found. Every presumption was to be in favour of the true owner. Jackson v. Sharp, 9 John. R. 162. To constitute an adversary possession, they insisted, there must be a possession under colour of title, with the intention to hold adversely. Adams on Eject. 57, 462; Frique v. Hopkins, 4 Martin’s R. N. S. 212; La Frombois v. Jackson, 8 Cow. R. 589. And they referred to the deed of the 18th of June 1810, under which the tenant took possession, to shew that the parties did not intend to convey, nor did he intend to take more than they had title to.
    3d. They insisted, the demandants were entitled to recover damages from the death of their mother in 1822. That they recovered the rents and profits in the same action in which they recovered the land. These damages were incident to the recovery; and as there was no limitation in the act, the recovery must be coextensive with the detention.
    Leigh, for the appellee.
    1st. The will of Peter Waggoner no doubt gives a fee to the widow; and the demandants must claim as her heirs.
    2d. The conveyance to Wilson was of five hundred acres of land more or less; but if Mary E. Waggoner should recover, then of five sixths. This was a conveyance of the whole whilst they had adverse possession, and were contesting her claim to any part of the land. And they merely provided that if she succeeded, Wilson should have only a warranty of five sixths, and be entitled to so much. In June 1810, Wilson took possession of the whole tract; and in 1813, he paid up the purchase money which had been postponed to await the issue of Mary E. Waggoner's suit. And, surely, from that time he held possession, claiming title adversely to her and all the world.
    3d. In ejectment, it is clear damages can only be allowed for five years before the action brought. The damages now are the same as when the time of limitation was fifty years. And if the law be as contended for on the other side, the demandant would recover his land and fifty years purchase.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that by the true intent and meaning of the last will and testament of Peter Waggoner deceased, his widow, Sinah Waggoner, took an estate in fee simple in and to the 500 acres of land in the proceedings mentioned; and she afterwards dying intestate, the same descended to her heirs at law, to wit, her five children her surviving, and MaryE. Waggoner, afterwards Mary E. Harrison, the daughter of her deceased son, Beverley Waggoner; whereby the said Mary E. Harrison acquired title to one undivided sixth part of said land; and she afterwards dying intestate, the said undivided sixth part descended to such of the demandants as were her children and heirs at law.

That the possession of one coparcener or tenant in common being the possession of all, none in possession of the whole subject can avail themselves of such possession, as a defence, under the statute of limitations, against the rest, without an actual disseisin or ouster of their coparceners or cotenants.

That by the true construction of the deed of bargain and sale of the 18th of June 1810, in the proceedings mentioned, executed to the tenant Wilson, by the coparceners of the said Mary E. Harrison, the ancestor of the demandants, the grantors therein sold, conveyed and warranted to the said Wilson only such interest in the said land as was vested in or had been acquired by them; and the said deed did not operate as a disseisin or ouster of the said ancestor of the demandants; nor was such disseisin or ouster effected by the deed of trust proceedings mentioned, of the 19th of June 1810, executed by the tenant Wilson to Berkeley Ward, conveying three undivided fifths of the said land.

That the jury by their special verdict have found no actual disseisin or ouster of the said ancestor of the demandants; and no facts which in point of law constituted such actual disseisin or ouster, unless such effect was produced, in connection with the possession of the whole land by the tenant, by the deed of release to him, from Berkeley Ward and others, of the 26th of October 1813, in the proceedings mentioned; as to which the Court deems it unnecessary to express an opinion.

That though a great lapse of time and other circumstances may warrant the presumption of a disseisin or ouster by one coparcener or tenant in common, of another not labouring under disabilities; yet that in this case the facts found by the jury in their special verdict do not warrant such a presumption; and such a presumption is, moreover, matter of evidence for the consideration of the jury, and not a question of law for the decision of the Court upon a special verdict.

The Court, therefore, without considering what would have been the effect, if any, of the aforesaid deed to the tenant of the 18th of June 1810, upon the question of disseisin or ouster, if the same had purported to convey the whole subject of the coparcenary, embracing absolutely the interest therein of the ancestor of the demandants; and without considering what effect, if any, the institution and continued pendency of the suit in equity in the proceedings mentioned, brought in the year 1831, by the demandants against the tenant, in the Circuit Court of Fauquier, ought to have upon the operation of the statute of limitations, is of opinion that the demandants have shewn good title to one undivided sixth part of the said 500 acres, and that the tenant has not shewn an adversary possession thereof, if any, for a sufficient length of time to constitute a bar under the statute limitations.

As regards the damages found by the special verdict, the Court is of opinion that, as at common law damages were not recoverable in a writ of right, and the damages authorized by our revised act of 1818 concerning writs of right, 1 Rev. Code, ch. 118, § l, p. 464, are for the tenant’s withholding possession of the tenement demanded ; the legislature must have contemplated such damages as were recoverable for the like wrong in some other kind of action ; and only nominal damages being in practice recoverable in ejectment at the date of that statute, the legislature must have had in view the damages recoverable in the action of trespass for mesne profits, which embrace the whole period during which possession of the land was withheld, down to possession recovered by means of the judgment in ejectment, but which the act of limitations, when pleaded restricts, as to the mesne profits that accrued prior to the action of trespass, to the period beginning five years before that action ; and inasmuch as the damages in a writ of right are not demanded by the count, but may be recovered upon the mise on the mere right; and the tenant has therefore no opportunity of pleading the statute, he ought to be allowed to give it in evidence upon the trial. In this view of the matter, a writ of right combines in effect the two remedies by ejectment and trespass for mesne profits, as they stood at the passage of the revised act of 1818, concerning writs of right. It gives the possession of the land, and the mesne profits from the time that the demandant’s right to the possession accrued, but with a limitation of the mesne profits, prior to the suing out of the writ, to five years, and continuing them down to the time of obtaining possession ; and the result is, where the land and the mesne profits are recovered in ^íe wiat right, by one and the same judgment therein, the extent of the recovery of the damages for mesne Pro^ts bi that action is placed precisely upon the same footing that it is placed in the action of ejectment by the act of the 6th of April 1838, (Sess. Acts 1838, ch. 97, p. 76,) which authorizes the recovery in actions of ejectment of damages for mesne profits, not exceeding five years previous to the commencement of the suit, until the date of the verdict and judgment. And thus, as the law now stands, complete redress is given in one action, (whether the writ of right or the action of ejectment,) the demandant or plaintiff recovering by one suit not only the land itself, but the damages sustained by reason of its detention. The Court is therefore of opinion, that in a writ of right, the demandant may recover mesne profits down to the recovery of possession of the land; but for the time prior to the suing out of the writ, can recover mesne profits for only five years next before.

But the jury by their special verdict, in the event of the demandants being entitled to recover the land in •controversy, find alternatively for them one undivided sixth part, or one undivided fifth part, of the 500 acres, according to the opinion of the Court upon the law of the case ; and then proceed to assess the damages alternatively, but make the alternate sums for damages depend not upon the question whether the demandants are ■entitled to recover one fifth or only one sixth of the •tract, but upon the question whether they are entitled to recover rents and profits from the death of their ancestor, or only for five years prior to the suing out of the writ; and consequently, they have assessed the same amount of damages for withholding only an undivided sixth, as for withholding an undivided fifth of the tract. The special verdict is therefore so defective in regard to the amount of damages, that a correct judgment in relation thereto cannot be rendered upon it. But the Court is of opinion that the whole verdict ought not for that reason to be set aside, but that an interlocutory judgment ought to be rendered for the demandants for their undivided sixth part of the said 500 acres, the verdiet set aside as to the damages assessed by the jury, and a writ of enquiry awarded as to the damages which the demandants have sustained from the tenant’s withholding possession of the tenement recovered.

Judgment reversed with costs, a judgment for the undivided sixth part of the land, verdict set aside as to the damages, and a writ of enquiry awarded.  