the verdict be for an undivided share or interest in the premises claimed, it must specify the same, and if for an undivided share or interest of a part of the premises, it must specify such share or interest, and describe such part as before required. The verdict must also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term. If the right or title of the plaintiff in ejectment expire after the commencement of the writ, but before trial, the verdict must be according to the fact, and judgment will be entered for his damages, sustained from the withholding of the premises by the defendant, and as to the premises claimed, the judgment will be, that the defendant go thereof without day.

The judgment for the plaintiff will be, that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict, or if the judgment be by default, or on demurrer, according to the description thereof in the declaration. If the action be brought to recover dower which has not been assigned before the commencement of the action, the court in which the judgment is rendered, may have dower assigned by commissioners appointed for that purpose. If the plaintiff file with his declaration a statement of the profits and other damages which he means to demand, and the jury find in his favor, they are required at the same time, unless the court otherwise order, to assess the damages for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit until the verdict, and also the damages, for any destruction or waste of the buildings or other property, during the same time, for which the defendant is chargeable.

If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, default or otherwise, the damages must be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which cases a jury will be impaneled to assess them.

If the defendant intends to claim allowance for improvements, made upon the premises by himself or those under whom he claims, he must file with his plea, or at a subsequent time before the trial (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff. In such

case the damages of the plaintiff, and the allowance to the defendant for improvements will be estimated, and the balance ascertained, and judgment therefor rendered, as prescribed by the statute in respect to allowance for improvements. On the motion of either party, the court may order the assessment of such damages and allowance, to be postponed until after the verdict on the title is recorded. A judgment in an action of ejectment is made conclusive, as to the title or right of possession established in such action, upon the party against whom it is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action; except that if any person against whom such judgment is rendered, shall be, at the time of the judgment an infant, married woman, or insane, the judgment will be no bar to an action, commenced within five years after the removal of such disability. None of these provisions of the statute are to prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendant, who may be liable to such action. No writ of right, writ of entry or writ of formedon can now be brought in the state of Virginia. (Code of 1860, tit. 40, ch. 135.) Any defendant against whom a decree or judgment may be rendered for land, where no assessment of damages has been made under any of the foregoing provisions, may, at any time before the execution of the decree or judgment, present a petitition to the court rendering such decree or judgment, stating that he or those under whom he claims, while holding the premises under a title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff and the allowances to the defendant for such improvements. The jury, in assessing such damages, in every case must estimate against the defendant the clear annual value of the premises during the time he was in possession thereof (exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims), and also the damage for waste or other injury to the premises committed by the defendant. The defendant will not be liable for such annual value for any longer

time than five years before the suit, or for damages for any such waste or other injury done before said five years, unless when he claims for improvements as aforesaid. If the jury shall be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding the said premises, permanent and valuable improvements, they must estimate in his favor the value of such improvements as were so made before notice in writing of the title under which the plaintiff claims, not exceeding the amount actually expended in making them, and not exceeding the amount to which the value of the premises is actually increased thereby at the time of the assessment. If the sum estimated for improvements exceed the damages estimated against the defendant, the jury must then estimate against him, for any time before the said five years, the rents and profits accrued against, or damage for waste or other injury done by, him or those under whom he claims, so far as may be necessary to balance his claim for improvements; but he will not be liable for any excess in such case. After offsetting the damages assessed for the plaintiff and the allowances to the defendant for improvements, if any, the jury must find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment or decree will be entered therefor according to the verdict. Any such balance due to the defendant will constitute a lien upon the land recovered by the plaintiff, until the same shall be paid. If the plaintiff in such case be only a tenant for life, he may be reimbursed for what he has to pay for such improvements from the remainderman or reversioner, and the same will be a lien upon the premises therefor, and he may keep possession of the premises until the amount is paid. Nothing in the statute in respect to rents, profits and improvements will apply to any suit brought by a mortgagee or his heirs or assigns against a mortgagor or his heirs or assigns for the recovery of the mortgaged premises.

When the defendant claims allowance for improvements, the plaintiff may, by an entry on the record, require the value of his estate in the premises to be ascertained without the improvements, and then, if judgment is rendered for him, he may enter on the record his election to relinquish his estate in the premises to the defendant, at the value so ascertained, and the defendant may thenceforth hold the estate that the plaintiff had in the premises,

provided he pay therefor the said value, with interest, in the manner in which the court may order it to be paid; and, if payment is not made as ordered, the court may order the land to be sold, and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant. If the party by or for whom the land is claimed in the suit be a feme covert, minor, or insane, such value will be deemed to be real estate, and be disposed of, as the court may consider proper, for the benefit of the persons interested therein. If the defendant or his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representatives the amount so paid for the premises, as so much money had and received by such plaintiff, in his lifetime, for the use of such person, with lawful interest thereon from the time of such payment. (Code of 1860, tit. 40, ch. 136, §§ 10-15.) The provisions of sections 10-15 inclusive of the statute of Virginia above referred to are taken substantially from the Revised Statutes of Massachusetts, chapter 101, sections 32-39 inclusive.

Under the Code of Virginia the supreme court of the United States has held that ejectment may be properly brought against persons who have made entries and surveys of any part of the land in controversy, and are setting up claims to it, though not in occupation of it at the time the suit is brought. The policy of the law is obvious. It is, that persons out of possession who set up a false claim to land may, by a suit in ejectment, which is the legal and proper mode of trying title, have that claim brought to this test. The act provides that such a judgment is conclusive against all the parties; and thus the purpose of the law to quiet title by a verdict and judgment in such cases is rendered effectual.

The doctrine was also laid down in the same case, that there must be title somewhere to all land in this country—either in government, state or national. Any one in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with and in subservience to that title; and, where there is no claim of right, the possession cannot be adverse to the true title. And the instruction given at the instance of the plaintiffs in the court below, the purport of which was, that, if the plaintiffs' title was found to be the paramount title, and any of the defendants entered upon and took possession of the land,

without title or claim, or color of title, such occupancy was not adverse to the title of plaintiffs, but subservient thereto, was held by the appellate court to be sound, and the proposition was affirmed. (Harvey v. Tyler, 2 Wallace's R. 328.)

The language of the Code of Virginia, in respect to the proper parties defendants in an action of ejectment, is identical with that of the state of New York upon the same subject; and the construction given to it in the case of Harvey v. Tyler was held to be the true one by the old supreme court of the latter state. (Banyer v. Empie, 5 Hill's R. 48. Shaw v. McGraw, 12 Wend. R. 558. Edwards v. Farmers' Fire Insurance and Loan Co., 21 ib. 467.)

The rule laid down by the supreme court of the United States, in respect to the requisites of an adverse possession, is similar to what was given in a recent case by the court of appeals of Virginia. The court there says: "An entry by one upon land in possession, actual or constructive, of another, in order to operate as an ouster, and gain possession to the parties entering, must be accompanied by a claim of title." (Kincheloe v. Tracewells, 11 Gratton's R. 605.)

In an early case in the court of appeals of Virginia, and long before the enactment of the statute now in force there, it was declared that the tenants in possession are the proper, if not the natural, defendants to an ejectment. Although the landlord has a right to be made a defendant, through fear that he may be injured by a combination between the plaintiff and his tenant, he may waive this right, or, having asserted it, he may relinquish it by consent to the plaintiff. (Herbert v. Alexander, 2 Call's R. 418, 502.) But it has been recently held that, if a tenant is sued in ejectment for the land so held by him, his landlord is entitled, under the act, Code, chapter 175, section 5, to be made a defendant to defend the action. (Mitchell v. Banatta, 17 Gratt. R. 455.)

So also it was very early held by the Virginia court of appeals that an ejectment may be brought against several persons in possession of any part of a tract of land claimed by the lessor of the plaintiff; and also that several tenants claiming severally parts of the land sued for may be sued in an action of ejectment. (Camden v. Haskill, 4 Randolph's R. 462. Stuart's Heirs v. Coalter, 3 ib. 74.)

If in ejectment the demise and ouster be laid precedent to the plaintiff's title, the same is held, in an old case, to be cured by the