— Section 3156 of' Code 1876 authorizes the amendment of the complaint, by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require. The amendment, when allowed, relates to the date of filing the original complaint. The limitation upon this doctrine of relation to the commencement of the suit is, that the amendment will not be permitted to deprive the defendant of any rightful and legal defense. When any new matter or claim, not within the lis pendens and the issue between the parties, is -introduced by amendment during the progress of a suit, and the statute of limitations operates a bar to such new matter or claim at the time of its introduction, the defendant may insist upon the benefit of the statute, as if the amendment were a new and original suit; but, if the amendment introduces no new matter or claim, and simply varies the averments as to a subject already in issue, the statute will ruu only to the filing of the original complaint. — King v. Avery, 37 Ala. 169 ; Mohr v. Lemle, 69 Ala. 180 ; Rowling v. Blackman, 70 Ala. 303.
In Agee v. Williams, 30 Ala. 636, it was said : “ The defendant had held the adverse possession of the slave in controversy, under claim of title, from August, or September, 1848. Ilis adverse possession had not continued long enough, at the commencement of the suit, to give him title?; but had continued long enough at the time the amendment was made to give him title, if no suit ■ had previously been brought. The charge which he requested the court to give, assumes it to be law, that so far as the adverse possession of the defendant is concerned, the amendment of the complaint is to be regarded as the commencement of the suit. But that assumption is not authorized by law. The amendment was not the beginning of a new suit, but the correction of a fault in the pending suit — the suit commenced in October, 1853 ; and if, at the commencement of that suit, the adverse possession of the defendant had not continued for six years, it could not bar a recovery under the amended complaint.”
The date of the filing of the original complaint is not shown by the record; but the summons was issued January 23, 1878. The notice given by the casual ejector to the tenant in possession, to appear and defend, was directed to Mahala Loughridge, who appeared at the Spring term, 1878, and filed a plea of misnomer, averring thereiu that before, and at the time of the commencement of the suit, she was a married woman, the wife of Joseph Richardson, and ever since her marriage had been *333known and called l),y the name of Mahala Richardson, and by no other name. Upon the filing of this plea, the plaintiff asked leave of the court to amend the complaint, so as to make the name of the defendant consistent with the name suggested in the plea. On May 16, 1881, the court granted the plaintiff leave to amend the complaint; and at the Fall term, 1881, the complaint, by leave of the court, was amended by making the name of the defendant Mahala Richardson, instead of Mahala Loughridge, and also by making Joseph Richardson a party defendant. On May 20, 1882, the court ordered that an alias summons be issued for Joseph Richardson, which was issued and served September 14, 1882. At the Fall term, 1882, both the defendants appeared, and filed several joint pleas, among them the statute of limitations of ten years.
The court charged the jury, “that if they should find from the evidence that Wash. Loughridge, from March, 1869, up to his death in 1875, and Mahala Loughridge, now Richardson, after his death, as his heir, had and held adverse possession for ten years prior to the 13th day of September, 1882, then the plaintiff can not recover.” This charge assumes it to be law, that the alias summons which was issued, by order of the court, is to be regarded as the commencement of a new suit, so far as the adverse possession of the defendants is concerned. This assumption is erroneous. All the proceedings were had— the amendment, by which Joseph Richardson was added as a party defendant, was made, and the alias summons was issued • — in a pending suit, that had been commenced in 1878. The suit was certainly commenced at the date of the filing of the original complaint, as to Mahala Richardson ; and if, up to that time, her adverse possession, and that of her former husband, Wash. Loughridge, had not continued for ten years, the statute of limitations can not bar a recovery.
It is not necessary to incluiré, what would have been the right of Joseph Richardson to insist upon the benefit of the statute, if he had filed a separate plea: If “ two defendants join in a plea, which is sufficient for one, but not for the other, the plea is bad as to both.” — Overdeer et al. v. Wiley, Banks & Co., 30 Ala. 709.
The deed from Abe and Clarissa Evans to Washington Loughridge, being without subscribing witnesses, and without acknowledgment as required by the statute, is inoperative as a conveyance of title. — Lord v. Folmar, 57 Ala. 615; Stewart v. Beard, 69 Ala. 470. We do not deem it necessary to consider the admissibility of the deed as evidence of color of title, as the question, probably, will not arise on another trial.
Judgment reversed, and cause remanded.