This was an action of waste, brought by the plaintiffs asreversioners, against the defendant George K. Hall, a tenant for years, for waste and destruction in felling timber, c. The declaration set out plaintiffs' title to the land under a deed from George K. Hall and wife, dated 24th November, 1836, with aparticular description of the land by course and distance. This deed was made by Hall to plaintiffs under the following circumstances:
At the May term, 1835, an action of ejectment was brought by the lessee of George Iv. Hall against David Greenly, John Windsor and Marvel Smith, for the land in question. A verdict was rendered for plaintiff, subject to the terms of a written agreement filed of record, viz: — 1. That a verdict be rendered for plaintiff, and each party pay his own costs. 3. That Hall should execute a deed to Elisha E. Greenly and John P. Greenly in fee, reserving to himself possession of said premises "for the term of twenty years, commencing on 1st January, 1837, without waste." 3. That possession should be delivered to him on or before 1st January, 1827. 4. That David Greenly and Elisha Evans should execute a bond to Hall for the quiet enjoyment of the premises during the said term of twenty years, and that no action should be commenced against him "for any rents, issues and profits of the said premises during said term."
The plaintiffs gave in evidence, subject to future objection, the deed of George K. Hall and wife to John P. Greenly and Elisha E. Greenly, dated 24th November, 1826, in pursuance of this agreement, conveying the land to John P. Greenly and Elisha E. Greenly in fee "excepting thereout and reserving to this grantor, George K. Hall, his heirs, executors, administrators and assigns, the use and possession of said lands and tenements with their appurtenances, and the rents, issues and profits thereof, for his and their own benefit and advantage, for the term of twenty years, fully to be complete and *Page 10 ended, without waste, and to commence on the first day of January next ensuing" the date of the deed. Also the bond of David Greenly and Elisha Evans to Hall, in pursuance of the fourth clause of the agreement aforesaid.
Plaintiff then examined several witnesses to prove the waste committed, and closed.
Cullen, for defendant moved a nonsuit. 1. This is a suit on a penal statute. The plaintiff is bound to prove his whole case, and especially to prove his title exactly as it is laid. He sets out title under a deed from George K. Hall and wife to John P. and Elisha E. Greenly, and the deed offered in evidence varies from the deed pleaded in. one of the lines, twenty perches instead oftwelve perches; it therefore does not describe the same land. The proof does not show that the injury was done on the lands to which the plaintiffs claim title; there being no other proof of the locus in quo than this deed, which is not for the same land. 2. The defendant has mistaken his own title in declaring as areversioner, which he is not; but a remainderman. A reversion is never created by deed, but always arises by operation of law. (2 Cruise, 421.) If a man bring an action as a reversioner, he cannot recover on proof of a title as remainderman. InWaples vs. Waples, the plaintiffs counted as tenants in common and proved title as coparceners, and were nonsuited. (1 Harr. Rep. 474; Comyn Land. Ten.; 6 Law Lib. 278, 493.) 3. The plaintiffs claim title under George Hall, and have not shown him entitled to any estate of inheritance in the land. He conveyed all his title to plaintiff, reserving twenty years; but it does not appear what his title was. 4. There is also a misjoinder of parties. If the plaintiffs have any right to the land they are tenants in common, who cannot jointly sue in an action of waste, but must bring several actions. Tenants in common cannot bring ejectment on a joint demise. So tenants in common cannot avow jointly. (Archb. Civil Pl. 49; 2 Mod. 61; 16 Johns.Rep. 479.) 5. These plaintiffs sue as infants by next friend, and have offered no proof of the infancy. This is put in issue by the plea. The defendants have pleaded the act of limitation and plaintiffs replied infancy; what then is the proof and where?
Ridgely, contra. 1. In respect of the act being construed strictly, the principle is directly the contrary, that the action is always favored. (Bac. Ab. Tit. Waste.) 2. As to the variance, the title is mere inducement. The deed need not have been set out at all; and it is not set out in the second count, which covers the whole claim. It is for the jury to say whether we have proved waste done on land to which *Page 11 we have title. 3. As to the misdescription of the parties, whether reversioners or remaindermen, the deed being an indenture and not a deed poll is the deed of both parties, and gives the title to Hall for a term, with the reversion to plaintiffs. But it is not necessary for us to show ourselves as reversioners or remaindermen; only necessary to show ourselves entitled to the inheritance. 4. As to Hall's interest, it is proved by the verdict in ejectment, and particularly by his deed in fee. He is estopped from denying the title conveyed by his own deed. 5. As to the misjoinder, the position taken is contradicted by the very authorities cited. In waste on a lease for years, tenants in common must join. (Archb. Civ. Pl. 49; 2 Mod. 61; 1 Com.Dig. 15; Abatement E. 9, 10; 1 Chitty Pl. 56; 1Ch. Gen. Pr. 271.) 6. No proof of the infancy is necessary. The state of the pleadings establishes their non age at the time the action was commenced. The suit is brought by persons professing to be infants, and the declaration states them to be infants, suing by next friend, admitted for that purpose by the court. By pleading to this declaration without objecting to the character in which plaintiffs sued, the defendant has admitted that character; and though we might have demurred to his plea of limitation, the taking issue on it imposes the necessity of no further proof than that furnished by the record. But further — since this action brought, and pending the same, the record shows a suggestion admitted by the defendant, that one of these plaintiffs has come to the age of twenty-one years since the suit commenced. The character of the suit therefore, and the admission of both parties appearing by the record, establish the proof of the infancy of these plaintiffs, at the time of the suit commenced.
Bates replied.
By the Court: We regret that we are under the necessity of nonsuiting the plaintiffs for the variance between their title as set out, and the proof of it now offered by Hall's deed. It is the subject of regret only, because it does not decide the merits of this case, nor the controversy between the parties, whilst it accumulates costs. Yet we are bound by the rules of law to say, that the evidence offered does not support the title laid. And, though it was not necessary for the plaintiffs in pleading to set out their title especially, yet having done so, and having made this deed from Hall and wife the foundation of that title, and the courses and distances contained in it essential as matters of description, the variance, though in but one of the courses is fatal, because it describes different land from *Page 12 that for the waste and destruction of which the plaintiffs have sued.
On the other points we have no difficulty. The operation and effect of Hall's deed to the Greenlys, was a grant of the fee to them, and the creation of a term for twenty years, not as a reservation by Hall of any part of the fee, which would have been void, but as a contract of lease (the deed being the deed of both parties) from the Greenlys to Hall, for a term of twenty years, to commence subsequently. It is a particular estate, created by the contract of the Greenlys, out of their fee already vested in them by Hall's deed, their estate of inheritance therefore is a reversion, and not a remainder. Hall's deed of bargain and sale, dated in November, 1826, gave to the Greenlys the use, and the statute immediately added thepossession to the use. Thus the Greenleys, at the date of that deed, were seized of the whole fee. But the term of Hall arising from the contract and the reservation in the deed, did not commence until the 1st January, 1837. Either therefore, the deed of Hall conveyed the whole fee to the Greenlys, or there was for a time a remainder in them, without any particular estate in any one; which could not be. The only legal effect of the reservation was a contract of leasing from the Greenlys to Hall, for a term commencing after their full seizin of the whole fee; the residue of their estate, therefore, is a reversion.
We are equally clear against the motion on the other points, which it is not necessary to go into, because the nonsuit must be ordered on the first ground noticed.
The plaintiff's counsel asked the court to disallow the defendants' witnesses' fees at this term, as he had not seen fit to call them, but put an end to the trial on his own motion for the nonsuit; and the court at first was inclined to favor the application, and distinguish between costs accrued and costs accruing; but, on reflection, they allowed the taxing of all the witnesses' fees summoned by defendant to this term, as a part of the costs of the cause.