#### DEN ON DEMISE OF JOSEPH KING vs. WILLIAM BRITTAIN.

Generally speaking, in an action oi ejectment, one, who comes in as land-! lord, is tobe taken as admitting the possession of all the land, described in the declaration, to have been in the tenant and to be in himself.

But when a declaration embraced several tracts, held separately by different tenants, the admission of possession by the landlord should be referred only to the tract occupied by the tenant, on whom the process was served. The cates oi McDowell v. Love, 8 Ired. 502, and Carson v. Burnet, 1 Dev. 4* Bat. 546, cited and approved.

Appeal from the Superior Court of Law of Henderson County, .at the Spring Term, 1849, his Honor Judge Bailey presiding.

The lessor of the plaintiff derived title to the premises, claimed in this ejectment, under a justice’s judgment against Young Gallion. The execution was against the property of Gallion and Thomas B. Cook, and the levy was made June 25th, 1843, and returned to the County Court. An order of sale was made at September Term following, a venditioni exponas was issued and under it the sale was made to the lessor of the plaintiff. In order to shew title in Gallion, the plaintiff gave evidence, that the defendant claimed under him by virtue of a deed of bargain and sale, executed on the 2nd of January, 1S43, *117by Gallion to Thomas R. Cooke, who conveyed to the defendant. And, in order to shew the defendant to be in possession of the premises, mentioned in the declaration, the plaintiff shewed, that the declaration was served on one John Ballard, as the tenant in possession, and that Brittain was admitted defendant upon his affidavit, that Ballard was his tenant. The affidavit purports to be made and is entitled in this cause and also in another action of ejectment upon the demise of the same lessor, King, against the said Thomas B. Cook ; and upon it Brittain was admitted to defend in each of those cases, and entered into the common rule and pleaded not guilty. The declaration in each of the cases was for the whole of the land purchased by the lessor of the plaintiff, and described it by metes and bounds as one tract. The defendant then gave evidence, that Cook was in fact in possession separately of twenty-five acres only, being part of the land covered by the deed to the lessor of the plaintiff and described in the declaration ; and that, in the action, which was originally brought against Cook, the plaintiff had recovered that parcel and been put in ppssession thereof. And the defendant gave evidence further, that Ballard was in possession of the residue of the tract, namely, two hundred acres, purchased by the lessor of the plaintiff, and no more ; and that he had never been in possession of any part of the parcel or tract of twenty five acres, so claimed in the suit against Cook and therein recovered. Upon this evidence the defendant insisted, that the plaintiff'could not recover: First, because the plaintiff had not impeached his title under the deed from Gal-lion, wh ch was executed nearly six months before the levy of the execution against Gallion’s property, under which the plaintiff claims, and, under it, the defendant had the title to the two hundred acres, of which Ballard was the tenant. Secondly, that the order of sale was void, because the record did not shew a notice to Gallion *118of the levy and return ; and, thirdly, because of the variance between the judgment and execution — the former being against Gallion alone, and the latter against the property of Gallion and Cook. It was agreed, that these points should be reserved and a verdict entered for the plaintiff, subject to the opinion of the Court thereon ; and that, if it should be against the plaintiff, the verdict should be set aside and a non-suit entered.

The Court, being of opinion that ihe plaintiff should be non-suited, gave judgment accordingly, and the plaintiff appealed.

Baxter, for the plaintiff.

N. W. Wood-fin, for the defendant.

Ruffin, C. J.

As the defendant's title (o the land in actual possession of Ballard, being all that was claimed by that person, is clear, he was entitled to the non-suit, unless he or the defendant Brittain is to be deemed to be also in the possession of the parcel of twenty-five acres, for the purposes of this action. It would be a thing to be regretted, if it were so; as it is directly contrary both to the fact and to the understanding of the parties. It depends upon the construction of the affidavit of the defendant, Brittain, and of the rules made on it. Generally speaking, one, who comes in as landlord, is to be taken as admitting the possession of all the land, described in the declaration, to have been in the tenant and to be in himsel. McDowell v. Love, 8 Ired. 503. But not always; for in Carson v. Burnett, 1 Dev. & Bat. 546, it was held, that, although the declaration covered both places, yet the plaintiff could not give evidence of a trespass by Mills, the landlord, at a place, which appeared by the plaintiff’s own evidence not to have been in the possession of the tenant, Burnett; and the reason assigned is, that it would be a surprise on the landlord, if he were called ou *119to defend there for portions of the land, not in Burnett’s possession, and, in respect of which, no recovery could have been had against Burnett, by himself. So here, we think it would be manifestly a surprise on Brittain, if a recovery could be effected against him, in respect of either the land or the costs, upon a presumption, that he was defending, in this action, his possession to the small parcel of twenty-five acres, which never were in the possession of the tenant, Ballard, against whom this suit was brought, but were in the possession of Cook, against whom another suit was brought, in which Brittain defended for that part unsuccessful]}', and, upon a recovery made therein, the lessor is actually in possession thereof! But it is argued, that Brittain is to be considered as defending for all the land described in the declaration, and not merely for the part held by Ballard, because the rule does not designate the parcel, for which he defends, as that in Ballard’s possession, but is general. But the truth is, that the rule was not drawn out at length in either of the cases, and is, merely, according to our very loose practice, that “upon the affidavit of William Brittain, he is admitted party defendant.” The rules are, therefore, to be referred to the affidavit, as explanatory of their true meaning. From that it is clear, that the landlord meant to defend in each action for the several parcels, as such, which the tenants, defendants in the two actions, respectively had in possession ; for it cannot be supposed, that either party intended the absurdity, that each of the tenants had the several possession of the whole of the land, at one and the same time. As the affidavit was made m the two cases, and, in each of them, the plaintiff sought to recover upon several, and not joint ousters by Cook and Ballard, it is absolutely certain, that those persons and Brittain must have understood, that the recovery was sought in each case for the part of the several possession of each. Consequently, in the case, which was *120brought against Cook, and which came on first to be tried, there was no thought of recovering therein the land held by Ballard, although there was just the same ground for doing so, that there is, in this case, to recover for the parcel that was held by Cook; but the recovery was in respect of the latter only. It is plainly against justice, that there should now be a second recovery for the same parcel against the defendant, Brittain, when no recovery could have been had therefor against Ballard, whose possession Brittain undertook to defend. It is an attempt to recover in the action against Ballard, not for the trespass committed by him, but for a trespass by Cook in a separate parcel, for which, indeed, there has already been a recovery. The case, therefore, falls within the ruling in Carson v. Burnett, and this point is for the defendant; which renders it unnecessary to consider the other points reserved.

Per Curiam.

Judgment affirmed.