Minke's Lessee v. McNamee

Alvey, J., delivered the opinion of the Court. The right of the alleged co-parceners to appear and take upon themselves the defence of the cause to the extent of certain undivided interests in the premises sued for, being resisted, as appears from the record, the question of their right so to appear is properly presented, although there was no bill of exception taken by the plaintiff. The proceeding by which such parties were admitted all fully appear of record, and is in no manner dependent upon extrinsic matter, such as would require a bill of exception to introduce, to enable this Court to take cognizance of the question, and to fully understand its nature and character. And being properly presented, the question is, were these parties entitled to be admitted defendants, under the facts of the case ?

To say nothing of the very irregular character of the proceeding had upon the application of these parties to become defendants, we think their application should have been de ²⁹⁸ nied. They could have no right to. appear except as landlords, and if they did not seek to come in, in that character, they should have been excluded altogether. It appears that at common law, landlords were entitled to be made defendants in ejectment, either alone or jointly with the tenant in possession. But in the case of Goodright vs. Hart, 2 Str., 830, the Court of King’s Bench having held that the landlord could only be let in to defend with his tenant, and that his right to appear depended upon the tenant’s . consent, it became necessary to regulate the mode of proceeding,- in such cases, by statute, which was done by Statute 11 Geo., II, ch. 19.

That statute is in force in this State, and, by the 13th section thereof, it is provided, that “ It shall and may be lawful for the Court in which an ejectment is brought, to suffer the landlord, or landlords, to make him, her or themselves, defendant, or defendants, by joining with the tenant or tenants, to whom the declaration in ejectment shall be delivered, in case he or they shall appear; but in case such tenant or tenants shall refuse or neglect to appear, judgment shall be signed against the casual ejector for want of such appearance, but if the landlord or landlords of any part of the lands, tenements or hereditaments, for which such ejectment was brought, shall desire to appear by himself or themselves, and consent to enter into the like ‘rule, that by the course of the Court, the tenant in possession, in case he or she had appeared, ought to have done, then the Court where such ejectment shall be brought, shall and may permit such landlord or landlords so to do, and order a stay of execution upon such judgment against the casual ejector, until they shall make further order therein.” It has frequently been a question as to the meaning of the word landlord, as employed in the Act, and as to what interest in the disputed premises will entitle a party to appear and resist recovery. In the case of Fairclaim dem. Fowler vs. Shawtitle, 3 Burr., 1297, it was said that there are two matters to be considered in the construction of the statute; first, ²⁹⁹ whether the term landlord ought not, as to this purpose, to extend to every person whose title is connected to, and consistent with the possession of the occupier, and which is liable to be divested or disturbed, by any claim adverse to such possession ; as in the case of remainders or reversions expectant upon particular estate; secondly, Avhether it does not extend, as between two persons claiming to be landlords de jure, in right of representation to a landlord de fado, so as to prevent either from recovering by collusion with the occupier, without a fair trial with the other. And, in that case, it was decided that where a person claims in opposition to the title of the tenant, he ought not to be considered a landlord within the meaning