of after issue joined. Whittington v. is cured by the statute of jeofails. Christian; 2 Rand. 353. Duvall v. Bibb, 3 Call 362. After issue joined in ejectment on the title only, and a verdict for the plaintiff, for the land in one of the counts in the declaration mentioned, it was held to be no ground for a motion in arrest of judgment, that the two counts laid demises of the land from different persons. Throckmorton V. Cooper, 3 Munf. 93; Paul v. Smiley, 4 Munf. 468. The plaintiff may recover under one or the other of two demises of the same land, from different persons. Hopkins v. Ward, 6 Munf. 38; See v. Greenlee, 6 Munf. 302. Effect of Expiration of Term before Decision of Cause. In ejectment, if the term laid in the declaration expire before the decision of the cause, the practice is to grant leave to amend the declaration by enlarging the term. Hunter v. Fairfax, 1 Munf. 218. Upon a judgment in ejectment, if execution of the writ of habere facias possessionem be prevented for several years by injunction, the plaintiff is entitled to the writ on motion upon a rule to show cause, without a scire facias, provided not more than a year has elapsed since the affirmance, by the court of appeals, of the decree dissolving the injunction, and dismissing the bill in chancery. In such case, if the term laid in the declaration has expired pending the proceedings on the injunction the court to which the motion is made for the writ, may cause the term to be enlarged and award the writ, upon a rule to show cause, served upon the defendant. Noland v. right, 6 Munf. 185. Seek The fact that the term stated in a declaration in ejectment has expired, previous to the decision on an appeal, is a circumstance of no importance. Baker v. Seekright, 1 Hen. & M. 177. f. Ouster. In ejectment, where the ouster is laid precedent to the plaintiff's title, it 4 Va-57 g. Unlawful Withholding of Posses. sion. It is sufficient in such a declaration to allege, that the plaintiffs on a certain day were possessed of and claimed title to this tract of land in fee simple, describing it as above, and that the defendant afterwards, to wit, on a certain day named, entered into the said premises and ejected them from their said land, and still holds them out of the possession thereof; it not being necessary to say in such a declaration that this withholding the possession from them was unlawful. Postlewaite υ. Wise, 17 W. Va. 1. 2. Filing. An amended declaration, in an action of ejectment, whereby a new party plaintiff is introduced, is copied into the record by the clerk, but no order of the court had been entered permitting it to be filed, nor any order in any manner recognizing it as filed. Such amended declaration is no part of the record, though it was placed among the papers of the case in the court below, and indorsed by the clerk as filed on a particular day. Williams v. Ewart, 29 W. Va. 659, 2 S. E. 881. 3. Amendment of Declaration by Substitution of New Parties. A declaration in ejectment may be amended by the insertion of a count in the name of new plaintiffs. The action, as to such plaintiffs, will be deemed to have commenced at the time of the service of the new count, with notice on the defendants; or if it be not served, then at the time of their pleading to or other recognition of the count. Strader v. Goff, 6 W. Va. 257. When one or more plaintiffs have been named in the declaration in ejectment, and it is afterwards discovered or supposed that other persons may have the right, the same reason that authorizes the joinder of several different persons, not claiming jointly or in common, in an original declara tion, admits the introduction of new plaintiffs by an amendment. When this is done, all may proceed in the one suit; the same surveys and depositions, thereafter made and taken, and the same evidence, may be used, as far as competent and relevant; and the rights of all the parties may, at one time, be determined. Strader v. Goff, 6 W. Va. 257. General Issue.—In ejectment the defendant can plead in bar only the general issue, that he is not guilty of unlawfully holding the premises claimed by the plaintiff in the declaration. Va. Code, 1904, § 2734; W. Va. Code, ch. 9, § 13; Johnson v. Griswold, 8 W. Va. 240; James River, etc., R. Co. v. Robinson, 16 Gratt. 434; Reynolds v. Cook, 83 Va. 817, 3 S. E. 710. Under the plea of not guilty, the defendant may avail himself of the defense provided by Va. Code, 1873, ch. 131, § 20, but only when "there is a writing stating the purchase and the terms thereof, signed by the vendor or his agent." Locke v. Frasher, 79 Va. 409; Dodson v. Culpepper, 23 Gratt. 4. Necessity of Filing Written and Record Evidence with Declaration. By the act of March 9, 1880, it was provided that in all cases of ejectment pending or thereafter brought in the counties of Buchanan, Dickinson and Wise the plaintiff should file with his declaration, thirty days before trial, 355. the written and record evidence on Special Pleas in Bar.-In an action which he relies. Section 4202 of the of ejectment, the only plea in bar of Virginia Code of 1887 provided that the action, in whole or in part, admisupon its adoption all acts of a general sible under the statute (Code 1873, ch. nature should be repealed. It was held, 131, § 13) is the plea of "not guilty;" that the act of March 9, 1880, was a and where the defendant was allowed general law within the meaning of Ste file a paper which he called a dis4202 and was thereby repealed. Carter v. Edwards, 88 Va. 205, 13 S. E. 352. B. PLEA. Necessity of Plea.-In ejectment, judgment will be reversed if it appears that the defendant has not filed a plea and there is no issue made up between the parties. Brown v. Cunningham, 23 W. Va. 109, citing Ruffner v. Hill, 21 W. Va. 159. Where there were three defendants ic ejectment, who appeared at different times; the first pleaded and, as to him, issue was joined; the second was admitted a defendant, but did not plead; the third pleaded, but no issue was joined; and in this state, the cause was tried, and verdict and judgment were given for the plaintiff; it was not error, notwithstanding there was no plea for the second defendant; nor issue as to the third; for their rights remained untouched, and may be tried when is sues are made up as to them. Hambleton v. Wells, 4 Call 213. claimer, but which was in effect a special plea, the appellate court held the allowance of the filing of such paper Reynolds v. Cook, 83 Va. 817, error. 3 S. E. 710. a In an action of ejectment there is no error in a judgment sustaining a demurrer to special plea to the since the kast coneffect that tinuance of the cause the plaintiff had conveyed by deed all his title to another party, his name being stated. as evidence in support of the plea can be given under the general issue, and, moreover, the West Virginia Code provides, ch. 90, § 13, that a defendant in ejectment shall plead the general issue only, which shall be that he is not guilty of unlawfully withholding, etc. Johnston v. Griswold, 8 W. Va. 240. Pleas in Abatement.-A plea in abatement is admissible in an action of ejectment. James River, etc., Co. v. Robinson, 16 Gratt. 434. Waiver of Plea in Abatement.-The defendant in ejectment may, after pleading in abatement, waive such plea, and plead in bar. James River, etc., Co. v. Robinson, 16 Gratt. 434. A defendant in ejectment admitted that he was mistaken as to matters pleaded in abatement, and upon this admission submitted the issue upon the plea to the court, and at the same time asked leave to file the plea of "not guilty." It was held, that this was in effect a waiver of the plea in abatement, and he should have been permitted to file the plea of "not guilty." James River, etc., Co. v. Robinson, 16 Gratt. 434. VIII. Defenses. A. IN GENERAL. McClung v. Echols, 5 W. Va. 204; See the title ADVERSE POSSESSION, vol. 1, p. 199. In General.-Adverse possession by the defendant of the premises for the period of the statutory bar is a good defense to an action of ejectment. Virginia Midland, etc., R. Co. v. Barbour, 97 Va. 118, 33 S. E. 554; Taylor v. Burnsides, 1 Gratt. 166; Creekmur v. Creekmur, 75 Va. 430; Thomas v. Jones, 28 Gratt. 383; Virginia Mining, etc., Co. v. Hoover, 82 Va. 449, 4 S. E. 689; Eream v. Cooper, 5 Munf. 7; Andrews v. Roseland Iron, etc., Co., 89 Va. 393, 16 S. E. 252; Stull v. Rich Patch Iron Co., 92 Va. 253, 23 S. E. 293; Core v. Faupel, 24 W. Va. 238; Adams v. Alkire, 20 W. Va. 480; Lagorio v. Dozier, 91 Va. 492, 22 S. E. 239. When Statute Commences to Run. An agreement between a tenant in possession and the plaintiff in an action of ejectment, that if the plaintiff recovers against the tenant's lessor, a lease shall be executed by the plaintiff The statute of limitations does not in the same terms as that subsisting before, does not operate to bar the action by the plaintiff, which joins the pant of land, while the title thereto is tenant as a defendant. Carrington v. Otis, 4 Gratt. 235. Where the complainants are in possession of real estate they can not enjcin defendant, who is out of possession, from prosecuting an action of ejectment against them for the recovery of the premises upon the ground that the deed under which the plaintiff claims is absolutely void, either from want of delivery and acceptance or because obtained by duress or fraud, since in either event, the defense in the action of ejectment would be complete. Hawkinberry v. Snodgrass, 39 W. Va. 332, 19 S. E. 418. Contract of Purchase from Plaintiff to Defendant. Where defendants to an action of ejectment do not attempt to show title in any other person than the plaintiff, but claim under him, and seek to defend their possession by virtue of a contract of purchase, they are estopped from disputing his title. commence to run in favor of an occu vested in the state. But the statute does commence to run in favor of such occupant against the grantee of the state, from the date of the grant of the land so occupied. Hall v. Webb, 21 W. Va. 318; Adams v. Alkire, 20 W. Va. 480; Shanks v. Lancaster, 5 Gratt. 110; Reusens v. Lawson, 91 Va. 226, 21 S. E. 347. Continuity of Possession.-The defendants must show not only entry, but continuous possession during a period necessary to give title under the statute of limitations. A break in the possession restores the seisin of the true owner. Stonestreet v. Doyle, 75 Va. 356; Turpin v. Saunders, 32 Gratt. 27; Parkersburg, etc., Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255; White v. Ward, 35 W. Va. 418, 14 S. E. 22. Color or Claim of Title. In an action of ejectment a party who relies upon his adverse possession of the land in controversy under color or claim of title, will on trial be required to show on what color or claim of title he relies. Hall v. Hall, 27 W. Va. 468. Mere naked possession of land without claim of right is no adverse possession, and, no matter how long continued, will not furnish a defense to an action or confer title. Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255. Possession under Equitable Title.The holder and claimant of property, under an equitable title derived from a vendor or grantor, who retains the legal title for future conveyance, does not hold adversely but in subordination to the grantor's title; and no length of possession under such title will ripen into such a title as to bar an action of ejectment brought by a second grantee, who has the legal title. Reynolds, 25 Gratt. 137; Ramsey, 26 W. Va. 345. Nowlin v. Garrett v. Possession under Parol Gift from Plaintiff.-An open, exclusive, notorious and uninterrupted possession of land for more than twenty years, taken, held, and claimed under a parol gift from a plaintiff in ejectment, for a life not yet terminated, is no bar to his recovery in the action. Clarke v. McClure, 10 Gratt. 305; Flanagan v. Grimmet, 10 Gratt. 421. Adverse Possession by Defendant When Plaintiff Acquired Paper Title.If it appear from the record in ejectment, that the defendant, or his testator, had adverse possession of the land, at the time when a deed of trust, under which the plaintiff claims, was executed, judgment ought to be rendered for the defendant, although the nature of his title does not appear. Bream v. Cooper, 5 Munf. 8. Where the evidence showed that the defendant and those under whom he claimed title had had adverse possession of the land in controversy under color of title for more than twenty-five years; that those under whom the plaintiff claimed knew that this land was cut off from the tract subsequently ac quired by them, acknowledged the right of defendant's ancestor, and asserted nc claim to the land themselves, and that at the judicial sale at which they purchased it was announced that a part of the tract had been cut off, it was held, that the plaintiff could not recover. Chesterman v. Bolling, 102 Va. 471, 46 S. E. 470. If it be stated in a bill of exceptions, upon a trial in ejectment, that the testator of the defendant departed this life in possession of the land, which possession he had held "adverse to the lessor of the plaintiff" for a specified time; it must be understood that such possession was adverse to those under whom the lessor of the plaintiff claimed; especially, if it appear from another bill of exceptions in the same trial, that the title of the lessor of the plaintiff did not commence until after the death of the said testator. Bream . Cooper, 5 Munf. 8. Where Plaintiff Claims under Deed from Defendant.-In ejectment a man can not object his own possession for twenty years against his own deed given within that period. Duvall v. Bibb, 3 Call 362. By One of Several Cotenants.—In ejectment between cotenants, where the defendants rely upon adversary possession, and acquiescence by the plaintiffs, letters by a party under whom defendants claim, and also a correspondence between one of the plaintiffs and the agent of the defendant, may be competent evidence to show for what purpose the tenants in possession had claimed the property, and the plaintiffs acquiesced in their claim. Stonestreet v. Doyle, 75 Va. 356. See the title JOINT TENANTS AND TENANTS IN COMMON. In an action of ejectment in which the question of cotenancy is involved and evidence strongly tending to establish the same, it is error to instruct the jury "that if they believe from the evidence that the defendants were in be recovered is east of the Alleghany possession of the land in controversy limitation upon an action of ejectment Va. 524, 44 S. E. 184. In West Virginia an action of eject- that then they should find for the de- the period of limitation is twenty 21 W. Va. 318. C. STATUTE OF LIMITATIONS. In General. The bar of the statute of trust on such real estate. Criss, 28 W. Va. 388. Criss v. Effect of Infancy of Plaintiff.-In- M, an infant, conveys her land, and |