majority">Hough, J.

This was an action of ejectment, instituted at the November term, 1874, of the Nodaway circuit court, by a portion of the heirs of John McQuiddy, for one hundred and sixty acres of land in Nodaway county, of which said McQuiddy. died seized, described as follows: The southeast quarter of the northeast quarter, and the northeast quarter of the southeast quarter of section nine, and the southwest quarter of the northwest quarter, and the northwest quarter of the southwest quarter of section ton, township sixty four, range thirty-seven. The defendants claimed title by adverse possession.

John McQuiddy, the ancestor of plaintiffs, died in 1863, leaving six children: Thomas J. McQuiddy, Newton R. McQuiddy, Caroline Newton, George McQuiddy, Mary C. King and Mary E. Wells. The last three named died before suit was brought. Newton R. McQuiddy was not made plaintiff, and during the trial plaintiffs dismissed as to Thomas J. McQuiddy, his interest in the lands in controversy having been sold on an execution against him in favor of Silas Mozingo, November 2nd, 1863; at said sale Silas Mozingo bought said interest, received a deed for the same, and subsequently conveyed it to defendant, John H. Ware, Sr.

George McQuiddy left seven children, six of whom wore made plaintiffs. Mary C. King left nine children, *81only one of whom joined in the suit. Mary E. Wells left two children, neither’, of whom were made parties.

1. PRACTICE IN SUPREME COURT: defect of parties: amendment: remittitur. Under the instructions of the court the plaintiffs recovered five-sixths of the land sued for. They were really entitled to less than one third. Plaintiffs now ask leave of this court to add,as parties plaintiff, the names of other heirs representing the excess of interest recovered in the court below. This amendment cannot be allowed. The most liberal construction ever placed by this court upon the statute of jeofails, will not justify such a practice. Conveyances may have been made by the parties proposed to be added, or other defenses may exist against them. The remedy in such a case where there is no other error in the record, is for the plaintiffs to enter a remittitur.

2. ADVERSE POSSESTION; constructive pessession, tenancy in common. The deed from Mozingo and wife to John II. Ware, Si’., which was dated March 17, 1864, conveyed all the es-tote Thomas J. McQuiddy in the land of John McQuiddy, and in two hundred and forfy acres 0f other lands belonging to Thomas J. McQuiddy, lying contiguous thereto. The entire tract of four hundred acres was known as the Mc-Quiddy land. Thomas McQuiddy lived upon his own land from 1856 until 1861, when he removed therefrom and occupied the same by his tenants until March, 1864, when the defendants went into possession, and so continued until the commencement' of this suit. The defendants took stone and timber off the land in controversy for building purposes, and paid taxes on it. They also made some rails there, and fed some cattle on it in the winter of 1864-5. With the exception of thirty or forty acres of prairie, the land sued for is timbered and brush land. The prairie land had been fenced by the defendants four or five years before the trial. The remainder of the tract was uninclosed.

In March, 1871, Thomas J. McQuiddy, as agent for the heirs of John McQuiddy, repaid to John II. Ware, Sr., *82all the taxes paid by him on the land in controversy, and took from him the following receipt:

“Maryville, Mo., March 21,1871.

“Received of Thomas J. McQuiddy, agent for the heirs of John McQuiddy, deceased, the sum of twenty-nine and T2ff% dollars, in full for the taxes, interests and costs on the following described real estate, that is to say: the southwest qr of the northwest qr of section 10, and the northeast qr of the southeast qr of section 9, and the northwest qr of the southwest qr of section 10, all in township 64, of range 87, the same being double the amount of the purchase money, as purchased by John IP. Ware, Sr., for the taxes of 1865, 1866 and 1868; also, the sum of seventy-nine and dollars, in full for all subsequent taxes on the above described land, and also to include the southeast qr of the northeast qr of section 9, in same township and range, for all subsequent taxes up to' date.

Given under.my hand, this 21st of March, 1871.

John IP. Ware, Sr.”

There was testimony showing that Thos. J. McQuiddy had mortgaged a part of the land sued for to Nodaway ■county, for school money; and there was testimony tending to showthat John IP. Ware, Sr., told Thomas McQuiddy at, •or about the time of the settlement in 1871, that he had no claim upon his father’s land, except for the taxes he had paid upon it. Neither the deed from the sheriff to Mozingo, nor the deed from Mozingo tó Ware, purported to convey the land in controversy, but only Thomas Mc-Quiddy’s interest in the land. By these conveyances Ware became a tenant in common with the plaintiffs in John McQuiddy’s land; and it may well be doubted whether the possession by the defendants of Thomas McQuiddy’s land, under a conveyance which included also Thomas McQuiddy’s interest in John McQuiddy’s land, amounted to a constructivo adverse possession of John McQuiddy’s land. All the acts done by Ware, in connection with the land in suit, *83were entirely consistent with his real relation thereto, which was that of a tenant in common, and if actual notice had been given to the heirs of all that the defendants did upon the- land, it would not have amounted to notice to them that the defendants claimed their interest in the land, or that he claimed any greater interest therein than was conveyed by his deed. As a tenant in common, he had a right to use the stone and timber upon the land, and it was his duty to pay the taxes; and he had a right to have an account taken of these matters, between himself and his co-tenants, in making a sale, or division of the estate.

In order to present more clearly the precise relations of the plaintiffs and defendants, let us suppose that Thomas McQuiddy had himself sold and conveyed to the defendants, his interest in his father’s land, and the fee in his own land, which adjoined it, and that the defendants had entered into the possession of Thomas McQuiddy’s land. Would it be pretended that such possession would constitute a constructive possession of the plaintiffs’ interest in their father’s land ? We think not.

There was no actual possession of any portion of the tract sued for until a short time before suit, and the acts of ownership exercised over the land were entirely consistent with the defendants’ interest in it.

One circumstance which we have hitherto forborne to mention may now be noticed. At a foreclosure sale under the mortgage made by Thomas McQuiddy of part of this land, Ware became the purchaser of a forty acre tract, but the deed therefor was not put upon record until 1872, and it cannot, therefore, in any manner aid his plea of adverse possession. The settlement made in 1871, of the taxes on the land, with Thomas McQuiddy, as the agent of the heirs, shows very clearly that Ware properly appreciated his rights in the land, and claimed no more than he was entitled'to under the deed from Mozingo. The instructions given by the court were much more favorable to the de*84fendants than the views we have expressed would warrant. Certainly no error was committed in them against the defendants. For the error as to the amount of the recovery the judgment will be reversed and the cause remanded, with directions to the circuit court to render a judgment for the plaintiffs for their real interest in the land, upon a remittitur being filed for the excess, otherwise to proceed to a new trial of the cause.

All concur.

Reversed.

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