
    Jonathan Wood & wife & others v. John Le Baron.
    A petitioner for partition, claiming title under a judgment, may show by parol evi dence, that his name was incorrectly stated in the judgment, through mistake; and it is not necessary, for this purpose, that the mistake should be previously corrected on the record.
    Where there is a difference between the description of the land of which partition is demanded in a petition for partition, and the description of land in a judgment under which the petitioner claims title, he may show by parol evidence, that the land described in both is the same.
    It is not necessary, in order to maintain a petition for partition, that the petitioner should be seized in fact of the premises, or of any part thereof.
    Petition for partition. The respondent pleaded sole seizin in himself, denying the title of the petitioners. George H. Winchester and wife, seized in the right of the wife, and claiming as their share one ninth and also one seventy-second of the premises of which partition is sought, were two of the petitioners. The trial was in the court of common pleas, before Hoar, J.
    
      To maintain the title on the part of the petitioners, two judgments of this court upon writs of entry for undivided portions of the premises described in this petition, as the petitioners contended, against the respondent, and in favor of the demandants therein described, were read in evidence. One of these judgments was in favor of all the petitioners, in which the share of George H. and wife recovered was one seventy-second. The other judgment was in favor of George W. Winchester and wife only, for one ninth of the premises. The petitioners contended that George H. Winchester, the petitioner, was the real party, who, in the last mentioned judgment for one ninth of the premises, was called George W. Winchester; that said George H. carried on the suit, and alone was present in court as the plaintiff, directing counsel on the trial of that-cause, and that the calling him George W. on that record was a mistake, and offered evidence to that effect, to which the respondent objected; but the court overruled the objection, admitted the evidence, and instructed the jury, that if they were satisfied that George H. Winchester, one of the petitioners, was the real party who prosecuted said suit with his wife, by the nam.e of George W. Winchester, and by whom said judgment was in fact recovered, and that W. was put for H. by mistake, then said judgment was conclusive evidence to prove the right and title of George H. and wife to one ninth of the premises therein described.
    Upon reading the records of the judgments upon said writs of entry, the description of the land recovered in the one was in different words from the description of the land in the other judgment, and the description of the land in the petition for partition was in different words from the description of the land in each of the judgments, insomuch that, on the face of said three descriptions, to a person wholly unacquainted with the premises, it would not appear that they were of the same land. The respondent objected to the admission of said judgments in evidence, on the ground of variance between the descriptions of the land in the judgments and the description of the land in the petition. The petitioners offered the testimony of witnesses to prove that the land described in the petition for partition was the same land described in the judgments. To the admission of this evidence the respondent objected; but the court overruled the objection, admitted the evidence, and instructed the jury that if, upon explanation of the location of the land, under those three descriptions in different phraseology, by witnesses well acquainted with the same, they were satisfied that the premises described in the petition for partition were covered by the descriptions in the judgments, and were the same lands, then the petitioners had established their title.
    The respondent objected that the petitioners had no seizin in fact of any portion of the premises of which partition was sought, and so could not maintain this petition; the respondent having shown that he had been in possession, claiming title, for more than twenty years. The petitioners having put in evidence the two executions which issued against the respondent on the judgments upon said writs of entry, and the returns of the deputy sheriff putting the petitioners (demand-ants therein) into possession, the judge overruled the objection and instructed the jury that the seizin and possession acquired under said executions were sufficient to enable Winchester and wife, and the other petitioners, to maintain this petition for the portion of the estate recovered in the judgments on which they were issued. The petitioners, under these instructions, obtained a verdict, and the respondent excepted.
    
      T. G. Coffin, for the respondent.
    
      E. Ames and E. Robinson, for the petitioners.
   Metcalf, J.

At the last law term held for these counties, George H. Winchester presented a petition to us, stating that he (by the name of George W. Winchester) and his wife recovered judgment, at a former term, against John Le Baron, and praying that the record of that judgment might be amended, by changing the name of George W. to George H. Upon an ex parte hearing, that petition was dismissed, on the ground, among other things, that there was no necessity for the amendment, inasmuch as the petitioner might have the full benefit of the judgment, though recovered in a wrong name, by showing that he was the real party. If we were right then, the first exception now before us is not well taken. We have reexamined the matter, after hearing the respondent’s counsel, and our opinion is not changed.

Misnomer of parties to actions is matter of abatement only. Hence, if a party, who is sued by a wrong name, is duly served with process, and suffers judgment to be recovered against him by that name, the judgment is valid, and he may be lawfully arrested on an execution issued against him by that name. Crawford v. Satchwell, 2 Stra. 1218. Or the judgment creditor may maintain an action on that judgment, declaring against the judgment debtor by his true name, and averring that the judgment was recovered against him by another name. Root v. Fellowes, 6 Cush. 29; American Bank v. Doolittle, 14 Pick. 127; Fitzgerald v. Salentine, 10 Met. 436. So if a party sues in a wrong name, and recovers judgment in such name, the judgment is valid, if there be no fraud, and he may maintain an action on it in his true name, averring that he recovered it in another name. Boyden v. Hastings, 17 Pick. 200. See also Moody v. Aslatt, 5 Tyrw. 492, and 1 Crompt. Mees. & Rose. 771. And, in both cases, he may give the judgment in evidence, in a collateral action, and may prove the identity of the person by parol testimony. Slevelie v. Read, 2 Wash. C. C. 274. See also Stevens v. Elizee, 3 Campb. 256. Indeed, the identity cannot often, if ever, be proved in any other way.

The question, whether the land, of which partition is now sought, is the samé that was recovered by the judgments given in evidence by the petitioners, was rightly left to the jury, and with proper instructions. Naglee v. Ingersoll, 7 Barr, 185. And since the decision in Marshall v. Crehore, 13 Met. 462, the petitioners’ seizin in fact need not be proved.

The exceptions are overruled, and the case is to go back to the court of common pleas for further proceedings.  