
    Lewisburg.
    Middleton v. Johns & als.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    1. A person having held actual possession of land for more than fifteen years under colour of title, and being then ousted by another who is a mere trespasser without pretence of title, may recover in ejectment against such trespasser; though it does not appear that the land has ever been granted by the Commonwealth.
    
    2. A genera] judgment for costs against two defendants in ejectment, is proper, though one of them did not enter himself a defendant until there had been one trial of the cause, and a large portion of the costs had been incurred.
    This was an action of ejectment upon the demise of Thomas J. Johns als., the heirs of David Scott deceased, for five hundred acres of land in the county of Braxton. At the April term 1841 of the Circuit Court of that county, Benjamin L. Boggs was admitted a defendant in the action, confessed the lease, entry and ouster, and pleaded to issue. An order of survey was then made, and the venue was changed to the county of Nicholas. At the April term of 1842 of the Circuit Court of Nicholas, the report of the surveyor was recommitted to the surveyor of Nicholas county; and at the September term of the Court the cause was tried, and there was a verdict for the defendant, which was set aside by the Court, and a new trial granted. After the verdict was set aside Henry O. Middleton was admitted a defendant to the action upon the usual terms, and pleaded to issue.
    In September 1843, the cause was again tried, when the jury rendered a special verdict, the material parts of which were as follows:
    That between the years 1805 and 1810, David Scott the elder entered upon the land in controversy, which was then in an unimproved condition, and cleared a small field, which he enclosed; and erected a cabin on the land, in which he resided about a year. On the 9th of August 1812, he, by deed regularly executed, conveyed said land to his son Felix Scott, upon the consideration as recited in the deed of 1000 dollars. On the 6th of March 1819, Felix Scott and wife, by deed regularly executed, conveyed the said land to David Scott the younger, for the consideration, as expressed in the deed of 1155 dollars. Said David has since died, and the lessors of the plaintiff, who are his heirs, held the uninterrupted possession of the land in controversy by themselves and their tenants for a period of more than fifteen years next preceding the year 1837; at which time, to wit, in the year 1837, the defendants entered upon said land and ousted the lessors of the plaintiffs; and that the said defendants have held possession thereof ever since.
    Upon this special verdict the Court gave judgment for the plaintiff for the term yet to come in the land, and his costs.
    The plaintiff having sued out a capias ad satisfaciendum for the costs against the defendants, it was served upon Middleton, who tendered property in discharge of his body; and then executed a forthcoming bond, with surety, for the delivery of the property on the day of sale, which was forfeited.
    In April 1845, a motion was made by the plaintiff for an award of execution on this bond; and a counter motion was made by Middleton to quash it and the execution on which it was taken, on the ground that the execution had issued against him for the whole amount of the costs which had been incurred in the cause, whereas, as appeared by the statement of the clerk, much the larger portion of the costs for which the execution issued had been incurred before Middleton had been admitted a party defendant. The Court overruled the motion to quash the bond, and sustained the motion for award of execution upon it; and thereupon Middleton 
      excepted to the opinion of the Court; and applied to this Court for a supersedeas to both the original judgment and the judgment on the forthcoming bond, which was granted.
    
      William Smith and Price, for the appellant,
    after referring to the principle that nothing can be inferred on a special verdict, referred to the verdict to shew that it did not find adverse possession or entry under colour of title by David Scott the elder, nor possession by himself or Felix Scott, when the deeds were executed by them, nor a descent cast; nor did it in any way connect the possession of the lessors of the plaintiff with that of their ancestor; or find that the land had ever been granted by the Commonwealth. They then insisted that the land not having been granted by the Commonwealth, there could be no adversary possession. Overton v. Davisson, 1 Gratt. 211; Fouke v. Darnall, 5 Littell’s R. 318; and therefore the whole question was, whether a party without title, having entered upon the land as a trespasser, could maintain ejectment for it against another party who had gotten possession without title. This they insisted could not be done; for although it was so held, at one time, in England, Bateman v. Allen, 1 Croke’s R. 437; Allen v. Rivington, 2 Saund. R. 111, yet these cases had been repeatedly overruled, and the contrary established; and they referred to Adams on Eject. 31; Doe ex dem. Crisp v. Barber, 2 T. R. 749; Martin ex dem. Tregonwell v. Strachan & als. 5 T. R. 108, note 1; Graham v. Peat, 1 East’s R. 244; 1 Chitty’s Pl. 191; Parker’s lessee v. Baldwin, 11 East’s R. 488; City of Cincinnati v. White, lessee, 6 Peters’ R. 441; 2 Starkie’s Evid. p. 4, 514; England ex dem. Syburn v. Slade, 4 T. R. 681; People v. Leonard, 11 John. R. 504; Smith v. Lorillard, 10 Id. 347; Vaughan v. Green’s lessee, 1 Leigh 287.
    
      
      Reynolds, for the appellee,
    insisted that the lessors of the plaintiff had held peaceable and uninterrupted possession of the land in controversy for upwards of fifteen years, under claim of title evidenced by deed; and the defendants without any title had entered upon and ousted them. That, therefore, whether the plaintiff’s title was or was not good against all persons, it was good against the defendants, who were mere trespassers: and he referred to Woods & als. v. Lane, 2 Serg. & Rawle 53; Jackson ex dem. Livingston v. Walker, 7 Cowen’s R. 637; Williams & als. v. Miller, 6 Id. 751; Murry & als. v. Denn, 5 Id. 200; Smith v. Lorillard, 10 John. R. 347; Klock & als. v. Rightmire, 16 Id. 314; Murray v. Hazen, 2 Id. 22; Duncan & als. v. Harder, 4 Id. 202; Pedrick v. Searle, 5 Serg. & Rawle 236; Weedman v. Hubble, 1 Cowen’s R. 613; Moody & als. v. M'Kim, 5 Munf. 374; Fouke v. Darnall, 5 Littell’s R. 317.
    He insisted further, that although the special verdict did not find that the land had been granted by the Commonwealth, it found that David Scott the elder took possesion of it between 1805 and 1810, from whom the lessors of the plaintiff regularly deduced their title, and held the land until 1837; and therefore, if it was necessary to sustain their title, the Court would presume a grant. Parker's lessee v. Baldwin, 11 East’s R. 488. But he insisted that the defendants being mere intruders could not set up an outstanding title in a third person.
   By the Court.

The judgments are affirmed.  