June, 1829.

#### John Doe ex dem. of Franklin Gorham v. Catharine Brenon & Jesse H. Mooring.

From Pith.

Where one upon ’\s own 'notion, procures himself to l>e maile a Defendant to an c;j> ctment brought against another, and offers no new plea, nor cvklence of t’.tlc in himself, it is presumed that he adopts the plea, and defends the title of his co-defendant.

Although the Plaintiff in Kj -ctmeut is bound to prove the person whom he makes Defendant, to be in possession, yet where one procures himself to be made a Defendant, the Plaintiff is not bound to prove him in nossessio-'; and if such a voluntary Defendant is proved not to be in possession, the Plaintiff is, notwithstanding such proof, entitled to a verdict.

A widow who continues the possession of her husband, is bound by an estoppel which would bind him were he alive.

The case of Hufferlo-.o v. No-mom, {Ante 1 •col. 208,) approved.

Ejectment originally commenced in the County Court, at M,ay Term, 1823, against the Defendant Bre-non alone. At November Term, 1824, of the County Court, Mooring, upon his own motion, was made a Defendant.

On the trial, before his honor Judge Norwood, on the last Fall Circuit, the lessor of the Plaintiff produced a judgment and execution against John Brenon, anda Sheriff’s deed to him for the premises in dispute. He then proved that John Brenon died in possession of the land, and that the Defendant Catharine was his widow, and it was admitted tiiat she continued the possession as his widow upon his death, until her own, which happened during the pendency of the suit. There was no other evidence of title in the Plaintiff. The death of Catharine Brenon, was suggested at March Term, 1827, but there was no entry of the abatement of the suit, nor of the award of process, to make, her heirs parties, neither was there any entry of a plea by the Defendant Mooring, at the time he was made a party.

The Defendant Mooring had never been in possession of the premises, and offered no testimony. His Counsel *175moved his Honor to strike the suit from the record, there being no issue in it since the death of Catharine Brenon, but his Honor overruled the motion.- The Counsel for the Defendant then moved his Honor to instruct the jury, that there was no evidence of title against the Defendant Mooring, and to direct that the Plaintiff should be non-suited. But his Honor instructed the jury, that if the Defendant Brenon continued the possession of her husband, and tiie Defendant Mooring came in and defended her title and possession, be was estopped to deny the title of the lessor of the Plaintiff. A verdict being returned for the lessor of the Plaintiff, the Defendant Mooring appealed.

The case was submitted without argument, by Gaston, for tiie lessor of the Plaintiff, and by Hogg, for the Defendant.

Henderson, Chief-Justice.

I think that the presiding Judge was right in all bis positions; first, as to the want of an issue between the Plaintiff and the Defendant Mooring. When the latter, upon his own motion, was made Defendant after issue joined between the Plaintiff and the other Defendant, and offered no new or additional plea, he very clearly adopted her defence and her pleas. Secondly, as to the advice, which the Defendant called on the Court to give to the jury, that the lessor of the Plaintiff took no estate by his deed from the. Sheriff, I also think that the Judge was right. For as to the widow of Brenon» who it is admitted continued the possession of her husband as his widow, and showed no other estate, she was estopped to say, that nothing passed by the Sheriff’s deed. Her husband, whose possession she continued, being Defendant in the execution, would have been estop-ped to make such allegation, had he been alive, and what is an estoppel upon him is equally so upon her. The Defendant Mooring coming in on liis own motion, and never having been in the actual possession, mnst be taken as *176defending her possession upon her title, he neither show* ing, nor attempting to show title or possession in hhn-self. The decision of the old Supreme Court, in the case of Alberton v. Redding, (1 Law Repos. 274,) that the Plaintiff must show the Defendant, is in possession, notwithstanding the Defendant enters generally into the common rule, I think docs not govern this case. There the Defendant is called into Court by the Plaintiff, and upon the Plaintiff’s allegation that he is in possession. Here the Defendant, of his own motion and free will, comes in, and admits himself in possession with the Defendant already in Court, and who is shown to be in possession. In this case, the Defendant Mooring would not be entitled to a verdict, if it was shown on his part, that he never was in possession. Much less is the Plaintiff bound to prove it.

So far as regards the Plaintiff’s deed, passing the estate by estoppel, against the Defendant in the execution, it has long been considered the law in this state, both in this Court and on the Circuits, although formerly it was held otherwise; and that the widow continuing her husband’s possession as widow, and showing no title, is bound by the estoppel of her husband, was ruled in the case of Bufferlow v. Newsom, (ante 1 vol. 208,) in this Court. .

Per Curiam. — Let the judgment be affirmed.