
    
      Walkers v. Boaz and Others.
    November, 1843,
    Richmond.
    (Absent Cabell, P.)
    Writ of Right — Pleading—Nonjoinder of Demandants Must Be Pleaded in Abatement — Cases Approved.--— TTpon a writ of right by three demandants, it appears at the trial of the mise, that the tenement demanded descended to the demandants and their two infant brothers from their mother, and that those two infants successively died without issue, and were survived by their father as well as by the demandants: Held, 1. That upon the death of the infant who first died, his share of the tenement descended to his four brothers, without regard to the father; and upon the death of the other infant, the share which he derived by descent from the mother passed in like manner to the three brothers, but the share which he derived by descent from his brother (l-4th of l-5th) descended to his father. 2. That according to the principles established in Garrard &c. v. Henry &c., 6 Band. 110, and Hinton and others v. Bartly and others. 9 Neigh 444, the fact ol the father’s having so become interested as tenant in common with the demandants (not having been pleaded in abatement) cannot prevent the demandants from recovering so much of the tenement as they shew title to, namely, all except that fourth of a fifth.
    Same — Same—Nonsuit—When Proper to Set Aside. -A nonsuit in a writ of right having been suffered under a misapprehension on the part of the de-mandants and their counsel as to the legal effect of an instruction given at the trial, held, the court, in the exercise of a sound discretion, should, on the motion of the demandants, have set aside the nonsuit; and this not having been done, the judgment overruling such motion was reversed.
    Same — Same—Plea of Several Tenancy — When Pleaded. —Within what time the plea of several tenancy should be pleaded In a writ of right.
    On the 13th of March 1824, Benjamin P. Walker, Samuel J. Walker and Isaac W, Walker, by John M. Walker their father and next friend, sued out of the circuit court of Buckingham county a writ of p’tecipe quod reddat against Meshack Boaz, William Phelps and James Rogers, which writ was returnable to the rule day in April following, and was then returned ex-486 ecuted *on Boaz, but not on the other tenants. At that rule day, the de-mandants filed their count demanding a tenement of 272 acres of land. A new writ having been issued against Phelps and Rogers, and returned executed upon them, at April term 1825 “came the parties, and by their consent” an order of survey was entered. At April term 1826, again “came the parties by their attorneys, and by their consent” a new order of survey was entered. Under the first order, a survey was made the 22d of April 1825; under the last, the 7th of September 1826.
    At September term 1826, before the case had been called, the tenants tendered a plea, that Boaz was seized, as sole tenant in fee, of 228 acres part of the land demanded, absque hoc that the said Boaz had any thing in the said 228 acres ; that Rogers was seized, as sole tenant in fee, of 24 acres other part thereof, with a like erroneous absque hoc; and that Phelps was seized, as sole tenant in fee, of the balance, with a like absque hoc. The plea was verified by affidavit. At the same time a like plea was tendered in another case of a writ of right by the same demandants against Meshack Boaz and Thomas Coleman. The reason assigned for not offering the pleas sooner was, that Boaz and his counsel did not know how much of his land (he holding one entire tract) was demanded in one suit, and how much in the other, until the last survey was returned. The court, however, rejected the pleas, being of opinion that they were offered at too late a period. And the tenants excepted.
    After a demurrer to the count, which the court overruled, the mise was joined on the mere right.
    At the trial, the demandants adduced evidence to prove that the land in controversy was granted to Jeremiah Whitney by patent dated June 22,1780: that Jeremiah Whitney, the patentee, died in the year 1781: that his brother Josiah Whitney was his 487 heir at law, to whom *the said land thereupon descended: that Josiah Whitney sold and conveyed the land, by deed dated March 4, 1783, to Susanna Whitney, who died in 1785: that Susanna Whitney, by her will dated April 7, 1784, devised the land to her son George Christian, but he dying before the testatrix, the devise lapsed, and the land descended to John H. Christian her eldest son and heir at law: that John H. Christian died in 1801, and by his will devised the land to his wife Joice Christian : that Joice Christian died in 1808, intestate, and the land thereupon descended to her daughter and heir at law, Susanna the wife of John M. Walker and mother of the demandants: that Susanna Walker died in 1814, leaving her said husband and five children, namely, the three demandants, and John Walker and an infant child not named: that the infant unnamed child died shortly after his mother, and his fifth part descended to his four brothers, namely, the three demandants and their brother John: and that John died an infant,' leaving his three brothers, the demandants, and his father John M. Walker him surviving. And thereupon the court instructed the jury, that upon the death of Susanna Walker, her interest in the land descended to her five children; that on the death of the infant unnamed child, his share (l-5th part) descended to his four brothers, namely, the three demandants and John Walker; that upon the death of John Walker, the share of the land which he derived by descent from his mother (l-5th part) descended to his brothers the three demandants, but the share which he derived by descent from his brother the unnamed infant l-4th of l-5th) descended to his father John M. Walker (who was not joined as a demandant in the writ of right), and he thereby became interested as tenant in common with the demandants. Whereupon the demandants, upon an understanding (sanctioned by the court) that the opinion would be reconsidered by the court without prejudice from a nonsuit, if the court should see cause to change its opin-488 ion, did suffer a nonsuit. * Afterwards the demandants moved the court to set side the nonsuit and to reinstate the cause, alleging that the said opinion was contrary to law, and that if otherwise, yet the demandants, notwithstanding the interest of their father aforesaid, might prosecute this action with effect; but the court, not changing its opinion aforesaid, refused to reinstate the cause and set aside the nonsuit; to which opinion the demandants excepted.
    On the petition of the demandants, a su-persedeas was awarded.
    Leigh for plaintiffs in error.
    Though the opinion of the court below, so far as the same held the father of the demandants entitled to a fourth of a fifth of the land, was correct, the demandants were nevertheless entitled to recover, in this action so much of the land as they shewed title to, namely, all except that fourth of a fifth. After the mise has been joined on the mere right, the objection does not lie at the trial, that a party has been omitted who is entitled to part of the land demanded; it does not lie so as to prevent those who are demandants from recovering that to which they are entitled. Green v. Liter and others, 8 Cranch 230; Liter and others v. Green, 2 Wheat. 306; Garrard &c. v. Henry &c., 6 Rand. 110; Linton and others v. Bartly and others, 9 Leigh 444. The nonsuit ought to have been set aside. And for the error in refusing to do so, the. judgment should be reversed and a new trial awarded.
    The pleas of several tenancy were plainly demurrable, because the traverse (the absque hoc) does not deny the joint seisin of the tenants in the parcel of which sole tenure is pleaded, but denies that the tenant whose sole tenure in such parcel is pleaded, holds any thing in that same parcel. But the chief objection to the pleas, and that which decisively shews that they were properly rejected, is, that they were tendered too late. The matter of the pleas was merely in abatement, and ought to have been pleaded at the appearance day.
    489 ^Johnson. The only ground upon which the pleas were rejected being that they were offered too late, that is the only question in respect to them which can be considered here. Now the record shews that the pleas were tendered at the first appearance of the tenants. They had not previously appeared in the cause for any purpose, unless such appearance is to be inferred from the entry that the parties came on a certain day, and thereupon the order of survey was made. The meaning of the rule which requires that matter of abatement shall be pleaded at the first appearance of the defendant, is not that he must plead it at the first day on which he might enter an appearance, but only that he shall not, after appearing and pleading other matter, and thereby waiving the matter in abatement, be allowed to go back and avail himself of it. Here it is not pretended that the demandants could have been benefited in any way by an earlier tender of these pleas; and the tender of them was made as soon as the survey enabled the tenants to set forth the particular bounds and description of the parcels which they claimed and held in severalty.
    The discretion of the court, to which the motion to set aside the nonsuit was addressed, was properly exercised under the circumstances. At common law, a nonsuit in a writ of right was a bar to a subsequent action for the same lands. But it is no longer so in Virginia since the act of February 11, 1824, Sess. Acts of 1823-4, p. 27, ch. 24, ? 2. Here, too, the nonsuit was voluntarily and wantonly suffered: there was, according to the pretensions now advanced for the demandants themselves, no sort of necessity for suffering it. If the opinion pronounced by the court was injurious to them, they might have excepted, and appealed to this court for the correction of the error. *
    But suppose the judgment be now reversed, the nonsuit set aside, and the 490 cause sent back for a new trial *on the mise, which is accordingly had, and a verdict and judgment rendered for the demandants: then such judgment might be reversed on a supersedeas by the tenants, because of the rejection of their pleas of several tenancy. Why then set aside the nonsuit and reinstate the cause, when these same pleas, or amended pleas prese ting the same matter, must now be received, and the consequence will be the abatement of the suit because of the misjoinder of tenants having no community of interest?
    Heigh in reply.
    The question whether this cause shall be reinstated, or the non-suit left in force, is of more consequence to the demandants than seems to be supposed on the other .side. If put to a new action, they may have to encounter the bar of the statute of limitations. Upon the motion to reinstate, the court below was called on to consider whether the justice of the case required that the motion should be granted; not merely whether the opinion it had expressed on the trial, in consequence of which the nonsuit was submitted to, should be adhered to as correct or changed as erroneous.
    That the pleas of several tenancy were offered too late is unquestionable. Gar-rard &c. v. Henry &c., 6 Rand. 110; 1 R. C. of 1819, ch. 128, 1 34, p. 496. It is a novel suggestion, that the tenants were obliged to wait for the execution of the order of survey in the cause, before they could plead that the lands which they respectively claimed and held as their own were claimed and held in several rights.
    
      
      ln Tibbs &c. v. Matthews &c., the court of appeals adj mitred the decree to be erroneous in this, that it was '‘personal against the heirs, and not conditional (as it ought to have been) that unless they pay the money, the lands be sold" &c. — Note in Original Edition.
    
    
      
      Wrlt of Right — Pleading—Misjoinder of Demandant —Hatter in Abatement. — In Bell v. Snyder, 10 Gratt. 355, it is said the nonjoinder of the omitted heir was clearly a matter in abatement, and was not therefore available on the mise joined; and the cases of Green v. Liter, 8 Cranch 229, Garrard v. Henry, 6 Rand. 110, and Walkers v. Boaz, 2 Rob. 485, only prove the same general doctrine that on the mise joined matter in abatement cannot be taken advantage of by the tenant; but none of these cases touch the anestion arising in this case which holds that upon the mise joined every affirmative matter going to the right and title of the demandant, the want of which might have been pleaded in bar of the action, is necessarily put in issue and he is put to proof of the same.
      Same — Same —Nonsuit.—See generally, mono-graphic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   ALLEN, J.,

delivered the following as the opinion of the court:

It seems to the court, that although the law was correctly propounded by the court below in the instruction given to the jury, yet according to the principles established in Garrard &c. v. Henry &c., 6 Rand. 124, and *Linton &c. v. Bartly &c., 9 Leigh 444, the objection was matter in abatement, and could not be taken upon the trial of the mise joined on the mere right. And as it appears that the nonsuit was suffered under a misapprehension on the part of the demandants and their counsel as to the legal effect of the instruction upon their righ to recover, the court, in the exercise of a sound discretion, should, on the motion of the demandants, have set aside the nonsuit, instead of overruling the said motion. It is therefore considered that the judgment be reversed and annulled, and that the plaintiffs in error recover of the defendants in error their costs here expended. And it is further considered that the cause be remanded to the circuit court, with instructions to set aside the nonsuit, and to reinstate the case upon the docket for a trial to be had on the mise joined.  