21 W. Va. 15 | W. Va. | 1882
announced the opinion of the Court:
In 1856 Andrew D. Johnston brought his action of ejectment in the circuit court of Greenbrier county against Lyman Griswold and Cornelius Rodgers, for the recovery of
From the bill of exceptions it clearly . appears, that. William T. Mann claimed the legal title to said land, and the said Griswold and Rodgers were either his tenants or purchasers from him of the land in controversy, which they were does not clearly appear; and that William T. Mann, did employ counsel and defended said suit in the names of said defendants; that ho was nota party to the suit, and that while he was so defending the suit, one hundred and sixty-three dollars and thirty-one cents costs accrued, which were
Did the rule properly issue, and was the judgment against the executors to pay the costs authorized by law? In Doc dem. Masters v. Gray, 10 B. & C. 615, it appeared, that the premises sought to be recovered in ejectment were claimed by the parish-officers and inhabitants of the township of Norton, in the county of Hereford, as parish-property. The defendant, a pauper, had been put in possession of the premises by the parish-officers. Upon ejectment being brought, an order ’ of vestry was made, that the action should be defended by and at the expense of the inhabitants of the township of Norton. The action was accordingly defended by an attorney employed and paid by them. There was a verdict, also a judgment for plaintiff. The plaintiff applied to the parish-officers for payment of the costs, which being refused, a rule was awarded against them to show cause why they should not pay the costs. Lord Tentorden, C. J., said: “In ejectment wo can make the real party pay the costs. Thrustout v. Shenton, 10 B. & C. 110. Here the parish-officers put a mere pauper in possession, and the lessee of the plaintiff was bound to bring the ejectment against him. The parish-officers therefore, ought to pay the costs.” In Berkeley v. Dimery, 10 B. & C. 113, the action was for breaking and entering the plaintiff’s close, cutting heath, &c., and it was found that the trespass was mainly committed by one Hill, who was not a party to the suit, and after judgment, plaintiff moved for a rule against Hill, to show cause why he should not pay the damages and costs recovered in the action, and relied on Thrustout v. Shenton, supra. Lord Tenterden, O. J., distinguished the case from Thrustout v. Shenton, and said: “In ejectment, the tenant in possession must be sued, and the court will not permit a person to put a mere pauper into possession merely to evade the costs. Here Hill might have been sued, as a trespasser, either jointly or singly, and if he had been sued singly, the now defendants might have
In Jackson ex dem. Martin and others v. Van Antwerp, 1 Wend. 295, it was held, that in ejectment where a party in interest, though not a party, defended the suit in the name of another, who was his tenant, will be ordered to pay the costs of the suit, an execution, against the defendant having been returned unsatisfied.
It will be observed that this is an exception to the general rule, that no one can be hold liable for costs in an action to which he is not a party. And this exception appears to apply only to the action of ejectment. The ground of the distinction is, that in ejectment the suit can only be brought against the party in possession, where the premises arc occupied, and the courts will not permit the party really interested to put an irresponsible party in possession to evade costs. It would seem unjust, that the party most interested should be permitted to appear in court by counsel, defend the action and have the whole benefit resulting from the action; and then escape all responsibility that should result from an adverse determination of the action. In Hutchinson v. Greenwood, 82 Com. L. Report 324, the decree by two judges of three who sat in the case, went much further and held, that though the parties who carried on the defense had no interest whatever in the laud, but who carried on the defense in the names of the parties in possession for a young lady a relation who claimed to own the land, yet they were on a rule, required to pay the costs. Lord Campbell C. J. said: ‘-‘The principle is, that the individuals, who order an appearance to be entered in ejectment in the names of those not really defending the suit, abuse our process, and that, as they substantially aré the suitors, we have jurisdiction to make them pay the costs.’’
We cannot affirm this decision to the extent, that any one whether interested in the subject of an ejectment :suit oy not, who employs counsel to defend it for a friend, thereby makes
It does not clearly appear from the record, -whether these parties defendant wore tenants of, or purchasers of William T. Mann. If they were purchasers, the English decisions would clearly apply.
In this country it has been held, that the landlord, who is entitled to be substituted in the place of or joined with the defendant in ejectment and without causing himself to be made a party-defends such suit unsuccessfully in the name of the original defendant, will be ordered to pay the costs of the plaintiff, after execution against the defendant on the record has been returned unsatisfied. Tyler on Ejectment
Judgment Affirmed.