
    *Duncan v. Helms & Others.
    July Term, 1851,
    Lewisburg.
    (Absent Cabell., P.)
    Evidence -Record — Effect as to Persons Not Parties to Original Suit. — A record to wliicb neither the demandants or the tenant was a party, is not even prima facie evidence against the tenant that the grantor in the deed to the demandant was heir at law of the grantee in the patent under which the demandant claimed title.
    This was a writ of right in the Circuit court of Eloyd county, brought by Madison B. Helms and others, who sued for John Belden, against Squire Duncan, to recover a tract of land of eight thousand acres. The tenant appeared and filed a plea, by which he defended his right to ninety acres of the land, and pleaded non-tenure as to the remainder. And the record states that the demandants filed their replication to the plea, and so the mise was joined; but the replication does not appear to have been in writing.
    On the trial, the demandants claimed under a patent from the Commonwealth to Austin Nichols; and having introduced in evidence the copy of record in a suit in equity in which John Belden was plaintiff, and Daniel Nichols, alleged in that case to be the only heir at law of Austin Nichols deceased, and others, were defendants, the object of which suit was to obtain the naked legal title to a large tract of land, embracing the land in question, the equitable title having been previously conveyed, and in which there was a decree appointing a commissioner to convey the title to the plaintiff, the demandants moved the Court to instruct the *jury that said record was prima facie evidence that the said Daniel Nichols was the heir at law of Austin Nichols, and that the legal title was in him; which instruction the Court gave; and the tenant excepted.
    There was a verdict and judgment for the demandants, and the tenant thereupon applied to this Court for a supersedeas, which was allowed.
    The Attorney General and Staples, for the appellant.
    J. B. J. Logan, for the appellees.
    
      
      The principal case is cited in Wiicber v. Robertson, 78 Va. 619.
    
   DANIEL, J.,

delivered the opinion of the Court.

The Court is of opinion, that it was not competent for the demandants on the trial to rely on the record of the suit in chancery between John Belden and Daniel Nichols and others, for the purpose of shewing- that the said Daniel was the heir of Austin Nichols, and that the legal title to the land in controversy was in him; neither the de-mandants nor the tenánt having been parties to said suit: And consequently, that the Judge of the Circuit court erred in giving the instruction as asked for by the demandants, and excepted to by the tenant; and that for this error the judgment of the Circuit court ought to be reversed, the verdict set aside, and the cause remanded. Such being the opinion of the Court, it becomes unnecessary to decide' the other question presented in the petition, to wit, whether the issue on the first plea of the tenant was ever properly joined in the cause; and if not, whether the irregularity was cured by the verdict. The cause being demanded for a new trial on account of the erroneous instruction aforesaid, the Judge of the Circuit court can, before such new trial is had, cau.se the alleged defect in the pleadings to be supplied, by requiring the demandants to file the written replication required by the statute.

Judgment reversed with costs; ver-diet set aside, and *cause remanded for further pleadings, and a new trial, and with directions to the Judge of the Circuit court not to repeat, on such new trial, the instruction complained of, should it be again asked for by the demandants.  