The opinion
Allen, J.
The only question presented by the appeal is whether the plaintiff has brought himself within section 370 of the Revisal, so that he may have the benefit of the action instituted by Thomas R. Williams against the defendant to defeat the claim of adverse possession.
The statute provides, in substance, that if a judgment of nonsuit, etc., is entered in a pending action, “the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit,” and its. effect, when its terms are complied with, is to cause the new action to relate back to the commencement of the first action, and to stop the running of the statute of limitations at that time.
It is clear that the plaintiff does not come within the language of the statute, because he was not the plaintiff in the former action, and it does not appear that Williams, who was plaintiff, is dead, or that the present plaintiff is his heir or representative. Nor is he within the equity and spirit of the statute, which is based upon substantial identity of parties,- cause of action, and title, and because of these the two actions are treated as one, and the second action as a continuance of the writ in the first.
“The two suits must, it is said, .be for substantially the same causes and the parties in each suit identical.” 17 R. C. L., 814;
Hughes v. Brown,
88 Tenn., 578 . “The object is to preserve the right of any person having it at the time of instituting an action on his title.”
Long v. Orrell,
35 N. C., 129 .
The second action must be “based upon the same cause of action and title.”
Marlin v. Young,
85 N. C., 158 .
These conditions do not exist in the present action, as Williams, the plaintiff in the former action, had executed the deeds under which the
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plaintiff in this action claims, before his action was instituted, and he could not therefore be claiming by the same title as the present plaintiff.
No error.