The evidence in this case shows that Gilbraith ■ivas first in possession of the premises in controversy. Also ¡that Manchan succeeded him in its possession, and that he con-veyed it to Herrick, who succeeded Manchan, and was in pos- • session of a portion, at the time of the trial. That Hanson acquired the possession of another portion under Herrick, and that Grayam succeeded Hanson in the occupancy of that portion, and had so continued, till the time of the trial below. The plaintiffs below also read in evidence, a deed from Herrick to himself, and produced the book of record of deeds, from which he read, what purported to be the copy of a deed from Hanson to defendant Edsall, in trust, for the benefit of his creditors. To the introduction of which, defendants excepted. Upon this evidence and under the instructions of the court, the jury rendered a verdict of guilty against all of the defendants, and found that plaintiff below was seized of an indefeasible estate in fee simple, in the premises described in the declaration. Defendants entered a motion for a new trial, which the court overruled, and rendered a judgment on the verdict. To reverse which this writ of error is prosecuted.
The defendant in error by conveyances, connected himself with Herrick, from whom the defendant Grayam derived his possession. Hanson succeeded Herrick in the possession of this portion of the premises, and Grayam succeeded Hanson, and the presumption is, that Hanson entered into possession under Herrick, and if so, he nor those claiming under him, have any right to dispute the title of Herrick or his grantee. This evidence established prima facie a right of recovery by defendant in error, as against Grayam, and no evidence was adduced to rebut this prima facie case, and failing to do so, the right to recover against Grayam, was suEcient.
If Hanson or Grayam held under a different title from that of Herrick, it should have been shown to defeat a recovery against Grayam.
Again, it was objected that the plaintiffs below failed to lay the proper foundation for the introduction of the copy of the deed from Hanson to Edsall, and that the court erred in admitting it in evidence. The bill of exceptions fails to show that any foundation by aEdavit or otherwise was laid. There was no proof of the loss of the original, or that search had been made, or that the original was not in the possession or power of the party offering the copy. No foundation was laid making the copy admissible either at common law or under the statute, and the court erred in permitting it to be read. Booth v. Cook, 20 HI. R. 129 ; Rankin v. Grow, 19 111. R. 626; Mariner v. Saunders, 5 Gilm. R. 117 ; Roberts v. Haskell, 20 111. R. 59. Even if the proper foundation had been laid for the introduction of a copy under the statute, it only authorizes a copy certified to be a true copy from the records to be used, and it was error to introduce the book against the objection of the opposite party. The right to use the copy is given by statute, and when claimed, the statute must be complied with by the party availing himself of its provisions.
It is also urged that the defendant in error had no right to recover against defendants not connected by possession or title with those in the occupancy of the land. And that the court erred" in refusing so to instruct the jury. The 4th sect. 36th chap. R. S. 1845, p. 205, provides that, “ If the premises for which the action is brought, are actually occupied by any person, such actual occupant shall be named defendant in the declaration ; if they are not so occupied, the action shall be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.” By the provisions of this section the action of ejectment can only be brought against the person in possession of the premises if they arc occupied, or against a person claiming title, etc., when out of possession and the premises are vacant and unoccupied. When occupied, persons not in possession cannot be made defendants to the action. When a recovery is had against the occupant, the judgment binds not only him, but all persons under whom he occupies, together with all persons in privity of estate or possession with himself. When a recovery is had against a tenant, the landlord is bound by it. So a recovery against a tenant in common who holds for himself and under the other tenants in common, is binding upon all his co-tenants as well as himself. There is, therefore, no necessity for making any other than the occupant a defendant to bind all persons in privity, by a recovery. And if there is no privity between those in and those out of possession, by joining them would involve the necessity of trying two or more separate, distinct' titles and causes of action, in one suit. This was not the practice before, nor is it since the adoption of this statute. The court below, therefore, erred in not giving some one of the appellants’ instructions numbered two, three, four and five, all of them containing the same proposition, it was immaterial which, but some of them should have been given.
For these errors the judgment of the Circuit Court must be reversed, and the cause remanded.
Judgment reversed.