The opinion of the Court was delivered by
Baylies, J.There are two questions to be decided, 1st. was there & misjoinder of defendants ? 2d. was Henry Thomas liable to pay for rents, and profits ? As to the first question, it appears, thát Thomas Pate was the mortgagor of the land in'question to the plaintiff, on tho 18th January, 1831; that one note of $200, which, by the condition of the mortgage, was' payable to the plaintiff on the first day of May, 1831, was not paid; and by reason thereof the plaintiff'became entitled to the possession of the land; but said Pate continued to hold possession, and, on tho 17th May 1831, deeded the premises to Henry Thomas, who,- shortly after, forbid the plaintiff ploughing the land, and threatened to prosecute him if lie did. The said Henry Thomas ploughed the land, and Pate planted it.
From these facts, the plaintiff, has a right to conclude, that Henry Thomas was in joint possession with Pate ; especially, when Thomas forbid the ploughing the, land, and ploughed it himself — and there is nothing in the case, which, shows that Thomas subsequently abandoned this possession. If Thomas and Pate had joint possession, there was no misjoinder of parties in suing both. But if Thomas had not a joint possession with Pate; yet as he took a deed of the premises from Pate, who held possession by the ex*169press, or implied consent of Thomas,, the relation of Land-, lord and tenant existed between them, and the plaintiff was justified in joining them in the action by the Statute," which says, “ the action shall in all cases be brought as well against the landlord, or landlords, if any there be, as against the tenant or tenants, in possession of the premises demanded; and if any such action be otherwise'brought, the same shall, on motion, be abated.” The Statute does not say, that the tenancy shall be for years; at will, or di sufferance; but it says “ in all cases,” the action shall be brought against the landlord and tenant, or the writ shall abate. Whether in the case at bar, the writ would abate, if the landlord had not been joined, we are not called upon' to decide; but we do decide, that the writ should nota-bate, because the action is brought against the landlord as well as the tenant’.
As to the 2d question, it is obseíwablé, that if the money contained in the decree respecting the mortgage in this case, was paid to the plaintiff, he would receive the interest of his money from the 17th of May, 1831, when Pate deeded to Thomas, fill 1st May, 1832, when the time of redemption expired.
But when judgement was rendered in the action of e-jectment for rents and profits of the land, to wit, at the March Term of the County Court A.. D. 1832, if was uncertain, whether the interest would be paid — ifit was paid when the time of redemption expired, there should be a deduction to the amount of the fjents and profits, if the same were received by the plaintiff. The liability of Henry Thomas to pay the rents, and profits is settled by the case of Atkinsons, adms. vs. Burt et al, 1 Aik. 329.
Judgement of the County Court is affirmed.