
    M‘Kee and others against Straub and others.
    1809. Sunbury, Saturday, July 8.
    THIS was an appeal from the decision of Bracken-ridge J. at a circuit court for Dauphin in October 1806.
    The statute of 8 & 9 William 3. c. 31. concerning partitions, does not extend to this state.
    The plaintiffs, who were entitled to an estate for the life of one Oliver Ramsey in certain lands of which he was tenant by the curtesy, brought a writ of partition against Straub who was tenant of the freehold in common with them, and joined with him as defendants two others who were merely tenants for years or at will under Straub. Issue was joined on the plea of “ non tenent insimul,” and before trial, Straub, the only defendant having a freehold interest, died. The cause was nevertheless tried in the Circuit Court, and a verdict found for the plaintiffs. Motions were then made for a new trial and in arrest of judgment, as well upon the ground that the writ had abated, as upon other grounds arising from the evidence; but the motions were overruled by his Honour, and the defendants appealed. The following reason for the appeal was alone noticed in the judgment of the court, although others were assigned, and pressed in the argument.
    One of three defendants in a writ of partition was tenant of the freehold, and died after action brought and before trial; the other two were his tenants for years or at will. Meld. that, tlie writ was abated by his death; and if not, the survivors were entitled to a verdict upon the plea of non tenent insimul. Vide act of April 7,1807. 8 State Xaws 155.
    “ That the statute of 31 Henry Y III. gives the writofj&ar- “ titione facienda to and against tenants of the freehold only. “ That it was proved on the part of the plaintiffs, that they and 'M Andrew Straub one of the defendants were tenants in com- “ mon of the freehold, and that the other defendants were “ tenants for years or at will under Straub, and not tenants of “ the freehold; the writ of partiiione facienda cannot there- “ fore be prosecuted against them, nor can they be "joined “ with the tenants of the freehold in the same action. That “ Andrew Straub one of the defendants, and the only party “ in interest, died before the trial; the writ therefore abated, “ and there cannot be a verdict or j udgment against him.”
    It was argued at July term 1808.
    
      Fisher for the defendants
    contendedor##, that as the only-defendant who had a freehold in the premises, died before trial, the suit was abated. The writ of partition being a real action, lies only against a tenant of the freehold; 16 Viner 236. pl. 16.; and therefore the interest of the surviving defendants, even if it were competent to join them, contributes nothing to the support of the action. But there was no authority to join them. Between the parties to this suit, there was no compulsory partition at common law; and the only statute which applies to this case, and has at the same time been extended to this country, is the 31 H. 8. c. 1. which relates merely to tenants of the freehold. At the same time it directs that the writ which it authorizes, shall be pursued at common law; and therefore if it made a tenant for years a good defendant to the writ, it would not help this case, because at common law the death of one of the tenants abates the writ. 16 Viner 232. pl. 3. But secondly, if the writ is not abated, the defendants were entitled to a verdict. The word “ tenet” in a writ aways implies a freehold. Co. Litt. 167. a. The issue was that the parties did not hold, that is, the freehold, together; and as to the defendants who survived, so was the fact. The legislature of this state have adopted the provisions of the 8 & 9 W. 3. c. 31. since the commencement of this action; but there is nothing retrospective in the act.
    
      Duncan for the plaintiffs
    argued that the statute 8 & 9 W. 3. c. 31. was in force in Pennsylvania, having been passed prior to the revolution, and followed upon many occasions. The third section of that statute provides that no plea in abatement shall be received in any suit for partition, nor shall the same be abated by the death of any tenant. This action is therefore not affected by the death of Straub, if it could have been maintained during his life; and it could have been maintained, because he was a good tenant of the freehold,,and the joinder of the others was only matter of abatement. The act of April 7th 1807, 8 St. Laws 155, does not shew that the statute of William has not been extended here, for this can never be shewn by a mere legislative act; nor does the act include the provisions of that statute at full length; the selection of certain of its provisions does by no means shew that the whole had not previously been in force.
    
      Cur. adv. vult.
    
   On this day the judgment of the court was pronounced.

Tilghman C. J.

The word “tenet” in a writ always implies a tenant of the freehold. Co. Lift. 167. a. The defendants were therefore entitled to a verdict, because it was proved that they were not tenants of the freehold.

It has been urged that the plaintiffs are entitled to a judgment, because by the stat. 8 & 9 W. 3. c. 31. the suit shall not abate by the death of any tenant. But the statute is out of the question, as it was made since the settlement of Pennsylvania, and does not extend here. I am therefore of opinion that judgment cannot be entered for the plaintiffs, inasmuch as it appears on the record that one of the defendants died since the commencement of the action.

Yeates J.

It is a good ground for a new trial, that neither of the defendants who were living at the time of the trial, were tenants of the freehold. Unless this fact was proved, the plaintiffs did not shew themselves entitled to recover.

At common law a real action between co-parceners was abated by the death of any one of the parties,' though it was admitted they were not co-parceners, but jointenants. Cro. Car. S7é. S83. And if in partition, after the first judgment and before the second, one of the defendants dies, the writ is abated, and the court will not suffer the return of the par-10 be filed. Any judgment given against a dead person is erroneous. Noy, 145, 6.

The counsel for the plaintiffs put the reason in arrest of judgment on its true ground, viz. the extension of the British statute 8 & 9 W. 3. c. 31. 3 Ruff. Stat. 683. Now the members of this court in their report to the legislature at the last session, in pursuance of the duties enjoined on them, have not specified this act of parliament as having been extended by practice; and it is observable that our own act of assembly of 7th April 1807, 8 St. Laws 155, adopts many of its provisions; and particularly the 4th section of our act uses the very expressions of the British act, except that instead of the words “ the death of any tenant,” it substitutes “ the “ death of any defendant.” But our act has no retrospective words, and, the trial being in October 1806, can have no operation. The British statute then not extending to us, it is conceded that the proceedings cannot be supported, and the judgment must he reversed.

J udgment reversed.-  