the landlord may appear and be made a defendant with or in the place of his lessee. Va. Code, 1904, § 2726; W. Va. Code, ch. 90, § 5; Herbert v. Alexander, 2 Call 502; Mitchell V. Baratta, 17 Gratt. 445; Hanks v. Price, 32 Gratt. 111; Johnson v. Manns, 21 W. Va. 17. See the title LANDLORD AND TENANT.

While the tenants in possession are the proper, if not the natural defendants to an ejectment, the landlord has 1 right to be made a defendant, through fear that he may be injured, by a combination between the plaintiff and his tenant; but he may waive this right, or having asserted it, he may relinquish it, by consent of the plaintiff. Herbert . Alexander, 2 Call 502. "This privilege is given by law as well for the benefit of the landlord as of the tenant. The tenant has a right to be defended by the landlord, and the landlord has a right to defend his title whenever it is assailed by an action of ejectment against his tenant. This right of the landlord can not be surrendered or prevented by any act of the tenant. The tenant can not dispute the landlord's title, but having received possession from him, is bound to restore it at the termination of the lease." Mitchell v. Baratta, 17 Gratt.

445.

Necessity for Existence of Relation of Lessor and Lessee.—In an action of ejectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action under § 5, ch. 131, Va. Code, 1873, whether the actual relation of lessor and lessee exists between them or not. Hanks v. Price, 32 Gratt. 107.

"It is very true the statute uses the word 'lessee' but it also uses the word 'landlord' as its correlative. The word 'lessee' was used, not so much to define a particular estate or interest, as to express a relation that of landlord and tenant, a person holding under and

in subordination to the title of another." Hanks v. Price, 32 Gratt. 107.

Effect of Submission to Arbitration by Tenant and Award Made in Favor of Plaintiff.-Even where the plaintiff and defendant in possession have submitted the matters between them to arbitration, and an award has been made in favor of the plaintiff, and a rule awarded against the defendant in possession to show cause why the award should not be entered as the judgment of the court against him, the landlord may be let in to defend. Hanks v. Price, 32 Gratt. 107.

As to liability of landlord for costs, see the title COSTS, vol. 3, p. 613. b. Lessee under Unauthorized Lease. The judge of a county court has no authority to authorize or assent to a lease of county property acquired for county purposes to any person for private use, or for any purposes other than those provided by law. The judge of the county court is a mere agent of the county in respect to county property, whose duties and powers are prescribed by law, and all contracts made by him in respect to said property not authorized by statute are void. Hence ejectment will lie to recover a part of the real estate of the county leased by the county judge without authority. Franklin County v. Gills, 96 Va. 330, Franklin County 2. 31 S. E. 507; Saunders, 96 Va. 335, 31 S. E. 1007. Tenant in Possession of Land Forfeited for Nonpayment of Taxes. The heirs of a patentee of land forfeited for nonpayment of taxes and not redeemed, can not maintain ejectment for it against a party who has entered upon it peaceably, though the tenant has no title to the land. Ushers v. Pride, 15 Gratt. 190.

c.

183.

If from the record there is any reason to believe a part of the defendants against whom final judgment is rendered, were infants during the pendency of the suit in which the judgment was rendered against the defendants, on a joint plea of not guilty, in ejectment, and no guardian ad litem was appointed for them in the suit, but the fact of such infancy does not so appear as to enable the appellate court to reverse the judgment, set aside the verdict, etc., upon supersedeas for that cause; and it does not appear that a motion to reverse or amend the judg-! ment has been made before the court which rendered it, or the judge thereof, on account of such infancy, and failure to appoint a guardian ad litem, and that such motion has been overruled in whole or in part, the appellate court, in affirming the judgment in such case, may affirm it without prejudice to the rights of the defendants in the court below, or any of them, if so advised, to move said circuit court or the judge thereof to reverse or amend the original judgment in the cause against them upon the ground that some of the defendants were infants during the pendency of the cause in the court, in which said original judgment was rendered, and no guardian ad litem was appointed for them in said suit, and also without prejudice to such defendants, if so advised, to prosecute a writ of error coram nobis, for the reversal of said original judgment, for the cause aforesaid, if such cause exist. Campbell v. Hughes, 12 W. Va. 183.

who testified, that a part of the defendants were at the institution of the suit, and then were infants, and that tc the best of his recollection he informed one of the counsel of the plaintiffs of the fact before the commencement of such suit; and before the jury retired to consider of their verdict, the plaintiff asked the court to instruct the jury that "If the jury find from the evidence, that the defendants, Munsen C. Van Winkle, Henry Van Winkle, and Harriet Van Winkle, are infants, under the age of twenty-one, and that no guardian ad litem for them had been appointed in this cause, then their verdict must be for said defendants,” which instruction the court refused. It was held, that the court did not err in refusing to give said instruction to the jury. Campbell v. Hughes, 12 W. Va. 183. See the title INFANTS. 4. Joinder of Parties Defendant.

Several tenants, claiming severally, parts of the land sued for, may be sued in one action of ejectment. Camden v. Haskill, 3 Rand. 462.

Ejectment may be brought against several persons, in possession of any part of the tract of land claimed by the Stuart v. Coallessor of the plaintiff. ter, 4 Rand. 74.

Necessity of Joining Wife in Action against Husband.-A wife living with her husband on land, and claiming the land as her separate estate, under a right derived from a person other than her husband, prior to commencement of the action, can not be turned out of possession by a writ of possession in an action of ejectment against her husband to which she was not a party. In such case she is, as to her claim, a person distinct from her husband, and must be made a party to the action, like any other person, in order to bind her by the judgment. In such a case

restrain the execution of the writ of possession as to her. The parties will

quirements of the statute,

Although the description of the premises claimed in a declaration in ejectment are not as accurate as could be desired, this court will not disturb a verdict for the plaintiff where it can not say that the premises are not described with such convenient certainty as that, from such description, possession thereof may not be delivered. Rhule v. Seaboard, etc., R. Co., 102 Va. 343, 46 S. E. 331.

What is required in a deed is sufficient in an action of ejectment, and though not certain within itself, if it points out the means through which it can be conveniently made certain, and thereby complies with the rule that "that is certain which can be made certain," it is sufficient. Clerc Greer, 49 W. Va. 102, 38 S. E. 485; Simpkins v. White, 43 W. Va 125, 27 S. E. 361; Postlewaite v. Wise, 17 W. Va. 1. See also, Urquhart v. Clarke, 2 Rand. 549.

V.

"The statute obviously does not mean to require any great nicety or exactness, and the authorities are to the same effect." Rhule v. Seaboard, etc., R. Co., 102 Va. 343, 46 S. E. 331. Necessity of Giving Metes and Bounds. The land may be described with reasonable certainty without giving its metes and bounds. Moore v. Douglass, 14 W. Va. 708.

Necessity of Stating Quantity. It is not necessary to state the quantity of acres of land either in the complaint or summons, if the land is otherwise described with reasonable certainty. Moore v. Douglass, 14 W. Va. 708.

If the summons or complaint contained no other description of the land claimed in the action than the quantity of acres, the township, and county, in which it is situate, the description probably would not be sufficient, as in such

tainty. Moore v. Douglass, 14 W. Va. 708.

Instances of Descriptions in Declarations. A declaration in ejectment, which describes the land as part of a larger tract owned by plaintiff, near certain creeks which have no public notoriety, is defective and may be demurred to. Hitchcox v. Rawson, 14 Gratt. 526; Moore v. Douglass, 14 W. Va. 708.

A description of land in an action of ejectment, showing the county, the quantity, the home farm (of which it was a part), the person to whom it was assigned, the suit in which partition was made, the surveyor who made the division, and all the lands by which it is bounded, is conveniently certain, within the meaning of the statute. Clerc v. Greer, 49 W. Va. 102, 38 S. E. 485.

A description which gives the names of adjacent owners, and the metes and bounds of a large tract, and continues "which said metes and bounds, however, include land owned by Marion Waddle, embracing 150 acres, and also what is known as the Brunty tract concontaining 41 acres, which tracts are not claimed by the plaintiff," is a sufficient description in an action to reCover ten acres, described by metes Howand bounds, of the larger tract. dashell v. Krenning, 103 Va. 30, 48 S. E. 491.

Where the declaration described the land demanded as being bounded by certain roads, describing them, and by the lands of certain named persons, and as containing nineteen acres and eight poles, it was held, to be sufficiently certain. "The statute merely requires that the premises shall be described with convenient certainty, so that from such description possession may be delivered. The description here is plainly sufficient for that purpose. It points out the locality of the tract by reference to the lands of coterminus owners