
    DEN ON DEMISE OF WILLIAM B. WISE vs. JOHN H. WHEELER.
    The landlord has a right to be made defendant in an action of Ejectment, in which the declaration has been served on his tenant, as tenant in possession.
    
      No other person has a right to be so made defendant, without the consent of the plaintiff; and if the plaintiff consents, tha person made defendant must not only enter into the common rule, but must also admit that he was in actual possession at the time of the service of tile declaration.
    When a new defendant is thus substituted, the declarations of the tenant, on ■whom the declaration was served, cannot be given in evidence against him.
    A deed conveying “ the Store-house wherein A. B. had a store, now occupied by him as a post-office, with the out-house and office adjoining,” conveyed also the lot on which the houses were, there being nothing in auy other part of the deed to control the description and exclude the lot.
    .Appeal from tlie Superior Court of Law of Hertford County, at t!be Fall Term, 1845, his Honor Judge Manly presiding.
    This is an action of ejectment, to recover the premises mentioned in the declaration. The notice was duly served on Samuel J. Wheeler, the tenant in possession, who failed to appear. At ilxe term of the County Court, to which the declaration was retoñecí, John II. Wheeler was, by an order of the Court, made defendant, and entered into the common rule. On the trial of the case, the plaintiff, to establish his title, shewed in evidence several judgments and executions against Samuel J. Wheeler, a sale under them of the premises, and a Sheriff’s deed to him. lie then proved, that at the time his suit issued and the notice was served, Samuel J. Wheeler was in actual possession. The defendant, John H. Wheeler, then gave in evidence a deed of trust, executed by Samuel J. Wheeler, which, it was alleged, conveyed the premises in question to him, to secure the payment of certain enumerated debts. This conveyance was executed and registered before the rendering of the judgments, under which the plain!iff claimed. The plaintiff alleged this deed was fraudulent, and, to prove if, offered in evidence the declarations of Samuel J. Wheeler, while in possession, and made a short time before the execution of the deed, to show that the deed was made to avoid paying-certain debts which ho owed. This testimony,-being objected to on the part of the defendant, was, by the Court, xejected. The plaintiff then contended, that the deed was void at law, for matter appearing on its lace : 1st, -because none of the debts recited in the deed of trust were proved to be due, except one ; 2d, because none of the debts recited, but two, corresponded in amount with the notes and evidences offered to establish them ; 3rd, because although the deed conveyed to the trustee, the defendant, all the property of Samuel J. Wheeler, it au-thorised a sale of only a portion, as enumerated in a certain paper writing exhibited, and marked A ; and 4th, because the deed directed the trustee to sell, lor the payment of certain debts, and to return to the said S. J. Wheeler the residue of the 1'und, without appropriating it to the other enumerated debts, and was therefore made in ease and favor of the grantor. It was further contended by the plaintiff, that the deed of trust, in conveying “ the store-house wherein the said Wheeler had a store, now occupied by him as a post-office, with the out-house and office adjoining,” did not pass the lot of land, upon which the houses were; and that a field of five acres adjoining the tan-yard, did not pass by the description of the houses and lot known as “ the tan-yard, with all its fixtures.”
    His Honor, the presiding Judge, instructed'the jury, that the deed of trust was not, in law, fraudulent and void, for any or all the reasons assigned ; but called their, attention to those several circumstances, as being proper for them to consider, in coming to a conclusion whether the deed was fraudulent or not. lie was of opinion, and 'so decided, that the description in the deed was sufficient to pass .both parcels of land referred to.
    The jury found a verdict for the defendant,' and judgment being rendered thereon, the plaintiff appealed.
    
      A. Moore, for the plaintiff.
    
      Badger, for the defendant.
   Nash, J.

We concur with his Honor in the opinions •expressed, and in the charge given. The latter might have been, and doubtless was, more at large and explicit than contained in the case, but it is sufficient to satisfy us, the law has been correctly administered.

The declarations of Samuel J. Wheeler were properly, rejected, and for the reason assigued by his Honor,'he was no party to the record. He was the tenant in possession, and the notice had been served upon him. There was, however, no obligation upon him to defend the suit.It was at his pleasure to do so or not. Upon Ins declining to be made the defendant, the plaintiff, upon the proper proof of the service of the notice, was entitled to a judgment by default against the casual ejector. The consequence of which proceeding- would be, that the plaintiff would be subjected to the payment of the costs incurred, leaving him to recover them in an action for the mesne profits, against the defaulting tenant. If, however, the tenant in possession, be in possession as tenant to any other person, the landlord has a right, upon making that appear to the Court in the' proper manner, to be made the defendant, either in the place of the tenant, or with him. Fairclaim on demise of Fowler v. Shamtitle, 2 Bur. 1801; Adams on Ejectment, 228. It is the right of the landlord, at common law, to come in and be made a party defendant. No other person has this right; and, if a party should be permitted to defend, as landlord, whose title is inconsistent with that of the tenant, according to the English practice, the plaintiff may apply to a Judge at his chambers, or to the Court, and have, the rule discharged with costs. Adams, 232. But if he neglect to do so, and the party continue on the record as defendant, he will not be permitted to set up such inconsistent title, as a defence, at the trial. Knight v. Lady Smythe, 4 Maule and Sel. 347. Adams, 232. Belfour and Henly's heirs v. Davis and Nixon, 4th Dev. and Bat. 302. Davis v. Evans, 5 Ired. 525. But, although no one but a landlord can be made defendant, against the will and pleasure of the plaintiff, yet the latter maj1- consent to any person coming in as defendant, and upon any title, .when the tenant in possession has made default. In such case, the service of a new declaration would be admitted by the defendant. As, however, the party so made defendant was not the person actually in possession, it is not sufficient he should enter into the common rule, but he must consent to be considered in actual possession. This is rendered necessary by the rule adopted in our Courts, that, notwithstanding the confession of lease entry and ouster by the defendant, in entering into the common rule, the plaintiff, at the trial, must prove the defendant to have been in possession at the commencement of the action. If the new defendant were not obliged to admit himself in possession, the plaintiff" could not recover. It is to be remembered, that, in form, the action of ejectment is nearly throughout a fiction, and the Courts have exercised the privilege of moulding it to suit the purposes of justice. The Court, therefore, ought in no case to permit a stranger to defend, without his agreeing to be considered in possession, and without the consent of the plaintiff. Originally, after the tenant Avas brought into Court by the service of a declaration and notice, another declaration was served upon him; the latter is now dispensed with, but, as before stated, if the parties agree, another declaration may still be served upon another party, at the time ; all, indeed, is by consent. The only person who is compelled to appear, is Richard Roe. Adams, 357-8. In the case now before us, we are to presume all the regular steps Avere taken, in order to make John II. Wheeler the defendant. He defended alone. The presumption is, that he Avas admitted by consent, as it does not appear to have been opposed, and it is probable all parties Avished to try the A'alidity of the deed of trust, as soon as possible. Samuel J. Wheeler Avas no party, and his declarations Avere not evidence against the real defendant. They were not offered to explain his possession.

We think his Honor was correct in his decision, as to the construction of the deed. The Court Avas- called on by the plaintiff’s counsel, to put a construction on it. By a conveyance of the store-house and the other houses, the lot upon which they stood Avas also conveyed, as there is nothing in the deed to control the description, and exclude the lot; and because the deed does convey all of the grantor’s property, of er-cry kind.

We concur with his Honor, in his charge with respect to the allegation of fraud. The circumstances all combined, did not, in law, amount to fraud, and Avere properly left to the jury for their consideration ; and whether they have found correctly or not, is not for us to say. The Judge dmv their attention to them, Avitli 1he remarks he thought proper. No complaint is made on account of. those remarks; but the plaintiff complains, -that the question was improperly left to the jury, and that the ■ Court ought to have decided it, as one of law. We do not think so. It is to be remarked, that among the objections to the deed of trust, as appearing on its face, there are only two, and they are the two last; the 3d and 4th. The 3d is, that the deed professes to convey all the property to the trustee, but authorises the sale of but a portion for the payment of debts. The answer is, all was conveyed to the trustee for the payment of the debts, and he had power by the deed, therefore, to sell all for that purpose. The 4th objection is susceptible of the same answer ; there could be no surplus to be handed over or returned to the plaintiff, while any of the debts, enumerated in the deed, remained unpaid. The trustee held all the property, for these purposes, and was answerable to .all the enumerated creditors for the faithful discharge of his duties. If it required all to pay the debts and he had sold all, he would not have been answerable to Samuel J. Wheeler, that he had paid more than the debts set forth in the schedule. But that evidently -was not the meaning of the parties.

Pkk Cur ram. Judgment affirmed.  