
    *Doe, Lessee of Taylor and Others v. Hill.
    July, 1839,
    Lewisburg.
    (Absent Brooke, J.)
    Ejectment — Tenant in Common against Cotenant— Actual Ouster. — In ej ectment against a tenant in common by a cotenant, if tbe jury return a special verdict, actual ouster must be found therein, to entitle the plain tifi to j udgment.
    Same — Same—Same—Effect of Consent Rule. — The necessity of finding this fact is not dispensed with by the entry made, in Virginia, when the tenant in possession is admitted defendant, that he “confesses the lease, entry and ouster in the declaration supposed, and agrees to insist on the title only, at the trial.” The confession that Richard Roe ousted John Doe, is not a confession that the real defendant ousted the real plaintiff; and when this latter ouster forms a part of the plaintiff’s title to recover (as it does between tenants in common), the fact of such ouster must be proved.
    The declaration in this action of ejectment contained three counts, in the name of John Doe; the first upon a demise by Samuel Taylor and Letitia his wife, formerly Letitia James, Robert Teller junior and Sarah his wife, formerly Sarah James, Robert P. James, Ann James widow of Robert James deceased, and Benjamin Taylor, made the 2d of December 1824, alleging an ouster by Richard Roe on the 10th of December 1824; the second upon a demise by the same parties on the 23d of August 1830, alleging an ouster by the same casual ejector on the 24th of August 1830; and the third upon a demise by Van B. Reynolds and Franklin Reynolds, with an allegation of ouster by the same casual ejector.
    The declaration was filed in the circuit court of Kanawha on the 22d of October 1831; and thereupon George Hill, tenant in possession, on his motion was admitted defendant to the suit, in the room of the said Roe. The entry proceeds to state that, by his attorney, he-“comes and defends the force and injury, when &c. pleads the general issue, confesses the lease, entry *and ouster in the declaration supposed, and agrees to insist on the title only, at the trial.”
    On the 25th of May 1833, the, jury returned a special verdict, finding that a patent issued to Robert James, Frederick Molineaux and John Pollock, bearing date the first day of August 1800, for 93026% acres of land, then lying and being in the county of Kanawha, to wit, unto James 59017% acres, to Molineaux 28308% acres, and to Pollock 5700 acres; which patent' is set forth in hsec verba; that the said Robert James departed this life before the institution of this suit, leaving the lessors of the plaintiff, Letitia Taylor the wife of the said Samuel Taylor, Sarah Teller the wife of Robert Teller junior, Robert B. James and Ann James, with Mary Honey-man now the wife of Samuel Honeyman, his children and heirs at law: that no division of the said land patented as aforesaid has ever been made between the said patentees or their representatives, so far as the testimony before this jury extends, but that a certain deed was duly executed to Van B. Reynolds and Franklin Reynolds, two of the lessors of the plaintiff, which deed is set forth in haec verba, and purports to have been made the 25th of August 1830, “between Samuel D. Honeyman and Mary his wife, Samuel Taylor and Letitia his wife, Robert Teller junior and Sarah his wife, and Robert B. James, (the said Mary, Letitia, Sarah and Robert B. James being the legitimate heirs at law of the late Robert B. James deceased,) and Ann James the widow of the late Robert B. James deceased, and Benjamin Taylor (who, by indenture executed before the signing hereof, by all the parties in interest, is the proprietor of an undivided fifth part of all the real estate of the said Robert B. James deceased lying in the state of Virginia,) of the first part, and Van B. Reynolds and Franklin Reynolds of the second part.” This deed recites the patent of the first of August 1800; recites also, that “by a decree of partition rendered in *the superior court of chancery holden in Lewisburg, the part of said land to which the said Robert B. James was entitled by virtue of said patent, was set apart and allotted to said parties hereto of the first part,” and that the parties of the first part are desirous to convey a portion of the land so set apart and allotted to them, unto the parlies of the second part, to wit, all that portion thereof which lies on the right hand fork of Cole river, commonly called Little Cole, and its waters or creeks; and then follows the conveyance. The jury find that the defendant has had possession of 100 acres of land, described in a patent-to him bearing date the 25th of June 1813, and set forth in hasc verba, which possession was adverse to the plaintiff and those under whom he claims, and was so for more than 20 years before the institution of this suit, and extended to the limits of the said patent: that the defendant is in possession of the land described in a deed from Samuel Honeyman and wife to him, set forth in hasc verba, which deed bears date the 6th of October 1825, and conveys a parcel of land on Colo river by metes and bounds, said to contain about 500 acres, and to be part of the tract patented to James, Molineaux and Pollock: that the defendant has been in possession of the land described in the deed to him from Honeyman and wife, from the date of that deed to the time of the verdict: that this deed includes the defendant’s tract of 100 acres, and is included within the limits and bounds of the tract of 930263^ acres. And the jury further find that the defendant has never had possession of any other part of the land in controversy in this suit.
    If the law arising from these facts be for the plaintiff, and authorize his recovery of any part of the land in possession of the defendant, then the jury find for the plaintiff such part of the land as he may rightfully recover on the facts, and one cent damages. But if the *law be altogether for the defendant, then the jury find for the defendant.
    The circuit court, being of opinion that the law was for the defendant, entered judgment for him.
    On the petition of the lessors of the plaintiff, a supersedeas was awarded.
    B. H. Smith, for the plaintiff in error,
    remarked, that the reason assigned in the court below for the judgment was, that the special verdict shewed the lessors of the plaintiff to be tenants in common with the defendant, and did not find any actual ouster. The record, he said, shews that the defendant confessed lease, entry and ouster, and agreed to rely upon title only, at the trial. This is not only an admission of the fact which it is said is not proved, but an agreement also that no such proof will be required at the trial. The object is to narrow the issue, supersede' useless evidence, and render the proceedings in ejectment more simple. Where a tenant in common is sued by his cotenant, and denies the ouster, upon application to the court, supported by affidavit denying the ouster, he is permitted to confess lease and entry only, and deny the ouster. This course is in perfect accordance with the principles of the action. The court prescribe the terms on which the tenant shall be permitted to defend, and every fact which may not tend to settle the title, is required to be admitted on the record. But when a defendant shews to the court good reason why a particular fact, usualljT admitted, ought not to be admitted, he is permitted to appear without making the admission, and a special consent rule is entered, suited to the case. The plaintiff is then notified that the fact so denied must be proved, and prepare his proof accordingly. When the special consent rule, however, is not entered — when lease, entry and ouster are confessed on the record, the party is not required to prove that which has been confessed. * Adams on Eject. 236, 7, and notes; 7 Mod. 39; Wigfall v. Brj'den, Burr. 296; Little v. Heaton, Ld. Raym. 750; Doe e. d. Gigner v. Roe, 2 Taunt. 397.
    Dunbar, for the defendant in error.
    The lessors of the plaintiff in the two first counts are tenants in common with Molineaux and Pollock, to the extent of the patent lines, as well as tenants in common with Honey-man and wife in the subordinate quantity of 59017 acres. Dividing the 59017 acres among James’s heirs, it gives 11805 acres to each. Hill was found to be in possession of 400 acres under a conveyance from Honeyman and wife. Supposing the pleadings and proofs to shew an ouster as to those 400 acres, then as to this land the deed to Van B. and Franklin Reynolds, made while Hill was in possession, is void, the third count must be left out of view, and the case decided on the two other counts. Is there such an ouster as will authorize a recovery upon the first and second counts, against Hill, who holds to his exclusive use and benefit 400 acres of the land? To maintain ejectment by one tenant in common against another, the ouster must be actual; that is, there must be an actual adversary possession by the defendant, and an actual dispossession of the lessors of the plaintiff, of the land held in common. Adams on Eject. 55; Burr. 2604; Barnitz’s lessee v. Casey, 7 Cranch 457. Now here, the land held in common being 59017 acres, it is obvious that the holding by one tenant in common of 400 acres to his exclusive use cannot constitute an actual ouster of his cotenants or either of them. Every tenant in common is equally entitled to possession according to. his interest, and if the tenant in possession of the 400 acres is subject to a recovery, he may equally recover against his cotenants in proportion to his interest in every farm on the 93026 acre tract which may be held and exclusivelj' enjoyed under any one of the heirs of Robert James. The actual ouster required to maintain ejectment by one tenant in common *against another is not only an exclusive and separate possession, by one of the tenants, of a part of the common property, but an entire dispossession of his cotenants. Doe e. d. Hellings v. Bird, 11 East 49; Jackson e. d. Jones v. Lyons, 18 Johns. Rep. 400. Where they are in unequal possession, the remedy is by writ of partition under the statute, or by bill in chancery. In this view, the authorities cited on the other side cannot be of any avail. They only establish that the confession of lease, entry and ouster is sufficient evidence of actual ouster from the land in controversy. They do not establish that it is evidence of ouster from the whole of the property which was held in common. And such ouster must be established, to authorize a recovery against a tenant in common before partition. If the plaintiffs can take from the defendant a part of the 400 acres in his possession, including his improvements, Pollock and Molineaux, and every other tenant in common, can do the same thing. All holding in common, each would recover a possession equal to his interest. To permit this, would answer no good purpose, as the parties would at last be forced to resort to a court of equity to settle their rights. Thus far, supposing the position to be correct, that the confession of lease, entry and ouster will, in the courts of Virginia, render proof of actual ouster unnecessary. But is that position correct? It is not denied that the practice in England, as well as in New York, is as contended for. But this practice has never been adopted in Virginia, or in any of the states except New York. On the contrary, in the case of Barnitz’s lessee v. Casej', 7 Cranch 463, 471, in which the question was raised and discussed, the supreme court of the United States decided that notwithstanding the confession of lease, entry and ouster, the plaintiff in ejectment must prove an actual ouster, to entitle him to a recovery against his co-tenant in common.
    *Smith, in reply.
    The lessors of the plaintiff have an interest in the land held by Hill. Hill has no interest in any other portion. And they have a right to come into the enjoyment of their portion of what he is holding. Whether or no there was a confession of lease, entry and ouster in the case in 7 Cranch, does not appear, except from the statement of counsel in the argument. The point seems to have received very slight consideration. No authorities were cited by counsel, nor does the court refer to any. It was decided only by a majority of the court, and it does not appear who were the dissenting judges. If the chief justice was one, that would much weaken the authority of the case. The weight of authority elsewhere, the history of the action of ejectment, and the difficulties in practice out of which it sprung, as well as precision and propriety in pleading, are all opposed to the decision. The legislature, too, has been extending the remedy, by authorizing tenants in common to join, 1 Rob. Prac. 465, and it has given it greater simplicity, by providing that after issue joined, no objection shall be taken to the substance or form of the declaration ; 1 Rob. Prac. 452, and remarks of Green, J., in Whittington &c. v. Christian &c., 2 Rand. 356. When the legislature is thus enlarging and encouraging the remedy, it would be remarkable if the courts should make decisions counteracting that liberal policy. Convenience requires that the practice should be settled as now contended for. If the party who means to deny the ouster be required to enter into the consent rule specially, there can be no surprise. And when it is entered into, if possession be all the plaintiff seeks, he can take possession and dismiss his suit.
    
      
      Ejectment — Tenant in Common against Cotenant— Actual Ouster. — In Buchanan v. King, 22 Gratt. 423, it is said : “It has been the established doctrine of the courts, that a tenant in common cannot maintain ejectment against his companion without proof of an actual ouster. Difficulties often occur in determining whether certain acts constitute an ouster. Parties otherwise entitled to recover are defeated from an inability to prove it. It was, therefore, provided (Va. Code 1860, ch. 135, § 15 ; Va. Code 1887, § 2736), it should be sufficient for the plain tifi to prove some act amounting to a total denial of the plaintiff's right as cotenant. It was not intended to alter ■well established principles of law governing the relations of joint tenants or tenants in common to each other, but simply to enlarge existing remedies. Doe, Lessee of Taylor v. Hill, 10 Leigh 457.”
      Va. Code 1860, ch. 135, § 15 ; Va. Code 1887, § 2736, provides "If the action be by one or more tenants in common, joint tenants or coparceners, against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to total denial of the plaintiff's right as cotenant.”
      On matters pertaining to ejectment, see mono-graphic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
      Por the law pertaining to tenants in common, see monographic note on “Joint Tenants and Tenants , in Common.”
    
   PARKER, -I-

This is an action of ejeciment against one tenant in common, by several others. The defendant appeared and entered into the common rule, according *to the form in Robinson’s Forms, p. 12. A special verdict was rendered, which omits to find the ouster; and the court gave judgment for the defendant. It is now contended that it was not necessary to prove the ouster, because it was confessed, and that for the same reason it was not necessary for the jury to find the fact.

In England, when an ejectment is brought by a joint tenant, parcener or tenant in common against his companion (to support which an actual ouster is necessary) the practice is for the defendant to apply to the court, upon affidavit, for leave to enter into a special rule, requiring him to confess lease and entry at the trial, but not ouster also, unless an actual ouster of the plaintiff’s lessor by him the defendant should be proved. Adams on Ejectm. 236. But I regard this as a mere point of practice, conformable to rules invented from time to time by the courts to advance the remedy by ejectment, and to force the parties to go to trial on the merits, without being entangled by formal objections to fictitious averments in the declaration. There are, however, essential differences between the rules of the several english courts themselves, and between those courts and our own. I do not believe we have ever adopted the special rule, the form of which is given in the appendix to Adams on Ejectm. No. 25, but in all cases our clerks make the entry of the consent rule in the form given by Robinson. Under it, I see no reason why the defendant should be bound by his confession of the fictitious ouster laid in the declaration, unless an actual ouster of the plaintiff’s lessor be proved, in which event the plaintiff ought not to be called upon to prove the ouster of the fictitious lessee. Otherwise the defendant cannot avail himself of the real merits of his de-fence, and must have the costs of the suit thrown upon him, although there has been no ^actual ouster of his cotenant. The court will always so mould the proceedings as that the real merits of the controversy shall be tried, without entrapping either party by the rules it has itself prescribed; and if it has admitted a tenant in common to defend the action, only on his confession of lease, entry and ouster, it will give such effect to that confession as is consistent with a trial of the merits. Such was the decision of the supreme court of the United States in the case of Barnitz’s lessee v. Casey, 7 Cranch 456, where the defendants, tenants in common, having confessed lease, entry and ouster, it was insisted that an actual ouster need not be proved. But the court decided that as a tenant in common could not in general maintain an action of ejectment against his cotenant, and there were no facts found in the case to prove an actual ouster and take it out of the general rule, the judgment in favour of the tenant should be affirmed. .There, as here, I infer that a special verdict had been found.

But if the confession so far dispensed with the proof of actual ouster as to authorize the jury to find it as a fact in the cause, yet as they have not found it, I am of opinion that .we, in deciding on the special verdict, cannot infer it. Pacts admitted by the pleadings of the parties need not perhaps be found; but I do not think that this rule extends to the pro forma confessions of facts not actually existing, required under a rule of court to bring the merits of a controversy under judicial decision. We ought' not to hold that a confession that Richard Roe ejected John Doe, not only precludes the necessity of proving that the real defendant ousted the real plaintiff, but also the necessity of the jury’s finding that fact, without the existence of which the plaintiff ought not to succeed. It is clear that if, in a special verdict not uncertain in itself, the cas.e made *by the plaintiff is ,a defective case or a defective title, the judgment should be fpr the defendant, and a venire de novo should not be granted. Brown & Sons v. Ferguson, 4 Leigh, 51, 56. Therefore I am for affirming the judgment, .and especially as the plaintiff may bring his pew ejectment, and prove, if he can, tbe actual ouster.

STANARD, J., dissented. But TUCKER, .P., and CABELL, J., concurring, the judgment was affirmed. " 
      
       In the new edition, vol. 1, p. 175, No. 10.
     