*581
By the Court.
Lumpkin, J.
delivering the opinion.
[1.] This case had been continued twice. It was in the discretion of the Court to continue it again, or not. Could the testimony of Lovick McGuire have been available had he attended Court, we should have been of the opinion', that the circumstances attending his absence, would have justified, if not absolutely required, a postponement of the cause. But the object of his evidence was to impeach his mother. To do this, the foundation had first to be laid by examining her. Interrogatories had been taken out for this purpose, which had not been executed and returned. Hence the testimony of young McGuire would have been immaterial; and considering the length of time this case has been in Court, we are not disposed to overrule the Circuit Judge in refusing the continuance.
Litigation in our Courts is too protracted, and it has been truly said, that justice when it comes, is so burdened with expense, that injustice were scarcely worse. Some of the cases on this docket by their repeated recurrence, are almost coeval with this Court. This should not be. This case has been tried three times. It has been here three times. And yet, its substantial merits were developed at first. No new fact or feature has been disclosed since. Upon the very point to which the testimony of Milly McGuire the mother relates, to-wit: The acknowledgment of Calhoun, that he knew when he was buying this land, that the title was in Absalom McGuire’s children; is not that fact patent upon the deed which he took ? He takes a conveyance from the father as “ parent,” and from Lovick McGuire, as the only child that had come of age! And suppose he did not know it, the proof shows that Absalom McGuire never pretended to claim this land as his own. All the children, except one, were minors. They sued for the land willed them by their grand father, so soon as they attained their majority. It may be a hard *582case upon Mr. Calhoun. It would be more so for these children to lose their land devised to them by their ancestor.
[2.] Was the Court right in forcing the custody of the title papers from Mr. Stubbs, who obtained them from Calhoun ? If Calhoun be considered as a party to the case, being warrantor of defendants’ title, and he seems to have acted the part of a quasi party, at least, there was nothing wrong in the ruling. If otherwise, it is questionable whether the Court did not transcend its just authority, in conveying the papers from the possession of Mr. Stubbs. Notice to produce papers, is applicable we suppose to parties and their counsel; otherwise they must be reached by a subpoena duces tecum. Still the deeds are produced and read and are lawful testimony, whether obtained properly or improperly. Brother Hill says, had he been present, he should have stood upon his professional privilege, and refused to deliver the papers. Brother Stubbs thought he could better serve the interest of his clients, in the Court House and his office, than within the four walls, and surrendered up the documents.
[3.] As to service of the interrogatories for Milly McGuire, it turns out that Messrs. Poe & Nesbit, who acknowledged service, never were the attorneys of the defendants. They had been spoken to, or one of them, Mr. Nesbit, and expecting to be employed, acknowledged service. Had the objection been taken in time, it would have been good. But it came too late. The interrogatories had been in Court several years. They had been read on both the previous trials without objection. Besides, it does not appear that the defendant was ignorant of this defect in the service.
[4.] Two objections are made to the charge of the Court. There was testimony, that Daniel McGuire, one of the plaintiffs, since the commencement of the suit, had conveyed his interest in the land. It was insisted there could be no recovery, as to him. The possession of the defendant being adverse at least from the bringing of the action, was of course adverse when this transfer was made. If Daniel McGuire’s *583deed was void under the statute of Henry 8th, then there could be no doubt but that he was entitled to recover, notwithstanding the sale. But suppose it were valid, might not his name be retained on the docket to enable his grantee to recover? He was entitled at any rate, to the mesne profits that had accrued up to the time of his parting with his title.
[5.] I would remark, that the Courts in this country have never enforced the statute of Henry 8th, in its stringency, but in a modified form only, and accompanied with a practice, which makes it amount to but little ; while they have pretty uniformly held, that a conveyance made during adverse possession, was void. They have invariably permitted the feoffee to use the name of the feoffor, to protect and enforce his rights; and this the real party in interest has frequetly to do, apart from the statute, on account of the absence or deficiency of some link in the owner’s chain of title; he is often compelled to fall back and lay a demise in the name of some previous conveyance. In case of notes, indeed in relation to every other interest, the true party has not unusually to shelter himself under the name of a nominal party, and this may generally, if not always, be done with this qualification, that the defendant is not thereby to be deprived of any benefit of defence, as against the actual party in interest.
[6.] The last error complained of is, in allowing a recovery of four-fifths of the entire lot. -Johnson, who claims under Calhoun, through Gray, made a verbal contract with Wood, to let him have the west half of the land; a line of division was drawn.-and Wood cleared a few acres; in less than a month the writ was served, and he surrendered to Johnson and abandoned the premises.
We are inclined to think, that it was right to recover of Johnson the whole lot as well as the mesne profits. Wood certainly made none. His contract with Johnson was not such as could have been enforced upon a bill for specific performance. No part of the purchase money had been paid, and it was immediately rescinded by mutual consent. *584Some of the doctrine upon this subject goes very far. It has been held, that a successful plaintiff in ejectment, is entitled to recover, not only so much of the premises sued for, as was in possession of the defendant at the institution of the suit, but for any extension of possesion within plaintiff’s claim, pendente lite. (Taylor vs. Cox, 2 B. Monroe, 436.) Johnson stepped into Wood’s shoes, substituted himself for Wood, and thus voluntarily and knowingly took upon himself all the consequences. He made himself defendant instead of Wood, quoad, this portion of the land. It is certainly more just that Johnson should pay the mesne profits, than that any part of them should be recovered of Wood.
Upon the whole, we think it best, that there should be an end to this controversy.
Judgment affirmed.