act of jeofails in force in Virginia. (Duval v. Bibb, 3 Call's R. 362.) And it has more recently been held that where the quantity and boundaries of the land described in the count and in the verdict vary from each other; but the verdict finds that the land described is the tenement mentioned in the count; it is to be presumed that the description given in the count is a mistaken description, and that the land recovered is the land demanded. And in the same case it was held that in a writ of right the tenant, to defend his possession under the statute of limitations, may show a possession anterior to his patent; and, to show color of title, may introduce the entry and survey upon which his patent issued. But, as there can be no adversary possession against the commonwealth, he cannot show possession further back than the senior grant. (Kirner v. Rankin's Heirs, 11 Gratton's R. 420.)

It is held that a plaintiff in ejectment may recover under one or the other of two demises of the same land from different persons. (Hopkins v. Ward, 6 Munf. R. 38.) It seems, however, that a plaintiff in ejectment cannot recover on a demise from a person who is dead at the time the action is brought. (See v. Greenlee, 6 Munf. R. 303.)

A party in peaceable possession of land, who is ousted by one having no title or authority to enter upon the land, may maintain ejectment to recover the premises upon his possession merely; and his right to recover cannot be resisted by showing that there is or may be an outstanding title in another, but only by showing that the defendant himself either has title or authority to enter under the title. (Tapscott v. Cobbs, 11 Gratt. R. 172.) But, in ejectment, if it appear from the evidence that the land in controversy was vacant when the defendant came to the possession of it peaceably and quietly, without any privity between him and the lessors of the plaintiff or those under whom they claim, the plaintiff cannot recover, upon the ground of the prior possession, of the lessors, without proving twenty years' uninterrupted adverse possession on their part or on the part of those under whom they claim, or showing a right to the possession by the death and seisin, in the manner prescribed by the act of the assembly, of some person under whom they claim. (Moody v. M'Kine, 5 Munf. R. 374.)

It is held that the possession of one coparcener or tenant in common being the possession of all, none in possession of the whole subject can avail themselves of such possession as a defense under

the statute of limitations against the rest, without an actual disseisin or ouster of their coparceners or co-tenants. (Purcell v. Wilson, 4 Gratt. R. 16.)

Though in ejectment the plaintiffs in their declaration claim the whole of a tract of land, the jury may find for the plaintiffs for an undivided interest in it. And though when less land is recovered than is demanded, the boundaries of the land recovered should be designated; yet, when an undivided interest in it is recovered, it is impossible to set out the boundaries; but the interest being certain, that is sufficient. (Callis v. Kemp, 11 Gratton's R. 78. And vide McMichen v. Amos, 4 Rand. R. 134. Clay v. White, 1 Munf. R. 162.)

In respect to equitable defenses, it has been held that the statute authorizing the defendant in an ejectment to set up an equitable title as a defense to the action, limits that defense to cases where the whole contract, and its precise terms, is manifested by plain written evidence. The written contract itself must be produced before the jury; and parol evidence of its contents is inadmissible, though it may have been lost or destroyed. The equitable defense under the statute is also limited to mortgages and deeds of trust, when the mortgage money has been fully paid, or the trust completely performed, or to sales, when the vendee has paid all the purchase-money and performed every thing incumbent on him, so as to entitle him to a specific execution of the contract in equity, and a conveyance of the legal title, without any condition. proper in equity to be on him imposed. It must be a sale, and not a partnership, in the acquisition of the land; and the terms of the contract must be plain. (Davis v. Trays, 3 Gratt. R. 283.)

With respect to the verdict in the action of ejectment, it was held in an early case that a verdict in such action, finding for the plaintiff in general terms, a certain "number of acres part of the premises in the declaration mentioned," without designating the boundaries of such part, or referring to some certain standard to supply such defect, is too uncertain to warrant a judgment upon it. (Gregory v. Jackson, 6 Munf. R. 25.) But in a much earlier case it was held that, if in ejectment the jury find "for the plaintiff one cent damages," the court may extend the verdict, and make it read: "We, of the jury, find for the plaintiff the lands in the declaration mentioned, and one cent damages." (McMurray v. O'Neal, 1 Call's R. 216.)

It is held that a plea in abatement is admissible in an action of ejectment. The act, Code, chapter 135, section 13, refers only to pleas in bar of the action. And when a defendant in ejectment, admitting that he was mistaken as to the matter pleaded in abatement, and upon this admission submitting the issue on the plea to the court, at the same time asked leave to file the plea of "not guilty," the court held that this was a waiver of the plea in abate ment, and that he should have been permitted to file the plea of not guilty. (James River and Kanhawa Company v. Robinson, 16 Gratt. R. 434.)

In an action of ejectment, if there is a claim by the plaintiff for mesne profits and damages for waste, and by the defendant for improvements under sections 30 and 32 of chapter 135 of the Code, both claims must be passed upon by the same jury. And when the statements are filed with the declaration and plea, the jury sworn to try the issue in ejectment may make all the inquiries required at the same time that they try the issue; or the inquiries may, if the court shall so order, be made by the same jury after the verdict on the title is recorded; or by a new jury to be impaneled. If the defendant claims for improvements on the land, the plaintiff may, at any time before a judgment is rendered on the assessment of the value of the improvements, though after the jury which tried the issue or passed upon the defendant's claims for improvements has been discharged, require that the value of his estate in the premises, without the improvements, shall be ascertained. The value of the plaintiff's estate in the premises, without the improvements, is to be ascertained as at the time when the assessment of the value of the improvements was made. (Goodwyn v. Myers, 16 Gratt. R. 336. And vide Pulliam v. Abe, 15 ib. 54.) It appears to be held in Virginia (and the rule seems to be a sensible one) that when a mortgagor leases the mortgaged premises subsequent to his mortgage, and the mortgagee gives the lessee notice to pay him the rent, and then recovers judgment for possession in ejectment, he may recover the mesne profits accruing after such notice. (Bank of Washington v. Hupp, 10 Gratt. R. 23.) The cases in which the action of ejectment may be brought are given in a previous chapter. (Ante, ch. 3.)

In the state of West Virginia they have recently adopted a new code, but a copy of it has not yet been received at the congressional library in Washington, or at the state library in Albany, if the

same has been published, and it is therefore impossible to give the laws in respect to the action for the recovery of real property in that state. The omission is to be regretted, but it cannot reasonably be avoided.

CHAPTER XLIV.

THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL STATES -THE PRACTICE IN KENTUCKY, TENNESSEE, NORTH CAROLINA AND SOUTH CAROLINA.

IN the state of Kentucky, a code of practice in civil cases was adopted by the general assembly in 1854, by which all forms of actions and suits then existing were abolished, and one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, was provided, to be called a civil action. This code, with some amendments which have been made to it from time to time, is still in force in the state.

In a civil action, the party complaining is known as the plaintiff, and the adverse party as the defendant. (Civil Code of Practice, title 1, §§ 1, 2.) And every action must be prosecuted in the name of the real party in interest, except he be a person judicially found to be of unsound mind, when the action must be brought by his committee, or, if he has none, by his next friend. (Civil Code, $$ 30, 60.)

An action for the recovery of real property, like other actions in the state, is commenced by filing, in the office of the clerk of the proper court, a petition, and causing a summons to be issued thereon, and the summons must be in the form and served as in other cases. (Civil Code, §§ 65-92.) The action must be brought in the county in which the subject of the action, or some part thereof, is situated; and claims for the recovery of specific real property, and the rents, profits and damages for withholding the same, may be united in the same petition, where each affects all the parties to the action. (Civil Code, §§ 93, 111.) And the plaintiff may strike from his petition any cause of action, at any time before the final submission of the case to the jury, or to the court when the trial is by the court. (Civil Code, § 112.)

The plaintiff's petition must be in the form prescribed in other actions, and the land for which the action is brought must be described therein with such convenient certainty as to enable an officer holding an execution to identify it. (Code, §§ 118, 119, 152.) The petition may be in the following form:

The plaintiff, John Smith, states that he is the owner, and entitled to the possession of a tract of land in Franklin county, containing seventy-five acres, and bounded on the north and west by the Kentucky river, on the south by the land of John Craig, and on the east by the land of Thomas Page; that the defendant, Richard Jones, now holds possession of the land without right, and for two years past has unlawfully kept the plaintiff out of possession.

Wherefore, he prays judgment for the recovery of the land, and two hundred dollars damages, for being kept out of possession, and for other proper relief. JOHN SMITH.

The defendant answers the petition in an action for the recovery of real property the same as in other actions, or a demurrer may be interposed thereto, for the same causes as will justify a demurrer in other cases; and the general rules in respect to pleadings, and mistakes in pleadings, and amendments, provided for other actions will apply to the action for the recovery of real property. (Civil Code, §§ 125, 135, 137, 138, 140-166.) The defendant's answer may be in the following form:

The defendant, Richard Jones, admits that the plaintiff is the legal owner of the land mentioned in his petition, but on the first day of September, 1848, the plaintiff, by a written contract filed herewith, agreed to sell the land to the defendant, at the price of one thousand dollars, payable twelve months after said date, and placed the defendant in possession of the land as purchaser, and