Talman v. Barnes

Headnote

One of two defendants in an action of ejectment, in whose favor a'verdict is rendered, is entitled to recover his costs against the plaintiff, notwithstanding the certificate of the circuit judge that there was probable cause for making him a defendant.

Where a party by writing admits due service of notice of a motion, he is precluded from objecting the want of full notice, although it be affirmatively shown that he had only seven days notice.

This was an action of ejectment, against John Barnes and Hiram Barnes, for the recovery of 175 acres of land. The-only evidence of title exhibited by the plaintiff, was a contract bearing date 7th July, 1829, entered into by the plaintiff and John Barnes, by which the latter agreed to purchase the premises in question of the plaintiff, and to make certain payments as the consideration of the purchase, and in default of making such payment, to surrender possession of the premises to the plaintiff. On the part of the defendants, it was proved that one E. Young went into possession of the premises about the year 1822, and on the 16th February, 1825, executed a quit claim deed of the premises to John Barnes, who went into possession, and on the 1st May, 1828, executed a quit claim to his son, Hiram Barnes, of all his interest in the premises, and on the 1st September, in the same year, executed a quit claim deed to Hiram of the east half of the premises, which included all the cleared land. Hiram resided with his father in 1825, and continued to reside in his father’s family until the autumn of 1831, when he married ; he was 23 years of age in September, 1828. Both John Barnes and Hiram Barnes resided on the premises when the ejectment was commenced. There was some evidence tending to show that Hiram acquiesced in the contracts executed by John, but the jury found a verdict in his favor, and found for the plaintiff as against John. The circuit judge certified in the minutes of the court that there was reasonable cause for making Hiram a defendant in the action. (See 2 R. S. 616, § 19.) The plaintiff entered a judgment that he recover against John Barnes

possession of the premises, and also the costs of the suit, and awarded a writ of haben facias possessionem, which writ was executed. The defendants now moved to vacate the judge’s certificate and the judgment entered by the plaintiff, and to set aside the writ of possession ; and also, that the defendant Hiram have leave to enter a judgment for costs in his favor; which motions were granted by the Chief Justice, together with the costs of this application.