Woods, Judge :
Four grounds of error are alleged by the plaintiffs in error, all of which are included in the general proposition that the court erred in giving said instruction to the jury ; and the only question for our consideration is whether this instruction correctly propounded the law arising upon the order of dismissal entered in said first action of ejectment on the 19th of November, 1872. The contention of the plaintiffs in error is that said order of dismissal “agreed” amounted to nothing more than a nonsuit suffered, or a simple order of dismissal made by them upon their own motion; that the sole defendant having died, the action had abated by his death, and not having been revived, there were no defendants before the court, and therefore no consent-order could be entered in the cause; and that if such order had been properly made by consent of defendants before the court, yet the plaintiffs would not be thereby barred from maintaining their present action ; for such order of dismissal, if so made, could not in that action affect the plaintiffs’ right to any greater extent than would a verdict and judgment therein, in favor of the defendants; for, as the law then stood', the plaintiffs could immediately have brought a new action of ejectment against the same defendants for the recovery of the same land. The contention of the defendants in error is that the order of dismissal “agreed” was in contemplation of law not only a dismissal of the action, but was a total abandonment of all such rights as the plaintiffs had in or to the lands in controversy; that such dismissal was a complete bar to the prosecution of any subsequent action between the same parties for the same land.
W e will first consider what was the legal status of the case of John Doe on the demise of Aaron Stockton v. H. B. Copeland. on the 19th of November, 1S72, when this order of dis[679]*679missal “agreed” was entered. It is not pretended that any other agreement was entered into between the parties to said action than what the law will imply from the terms of the order itself, speaking from the condition of the record as it then appeared: for what did not then thereby appear, in contemplation of law did not exist, and, as a consequence thereof, the court could not know what did not so appear. If, then, there was in fact any such agreement made as that mentioned in said order of dismissal, it could only have been made between the parties in said action, who, by the record, were then before the court, capable of entering into an agreement. It is elementary law that to constitute a valid agreement it is essential that there shall not only be a good and sufficient consideration and something to be contracted for, there must be a person able to contract and a person able to be contracted with; and without such contracting parties there can be no agreement, lor without them there could be no reciprocal or mutual assent. 1 Ohit. Oont. 11; Oomyn. Cont. 2. At common-law, the death of either party pending the action (if there be but one on that side) abates it, but it is admissible to revive it if it were original^ maintained by or against the personal representative, if it be a personal action, and if a real or mixed action, by or against the heir or devisee. Davis v. Teays, 3 Grat. 290; Ruffners v Lewis, 7 Leigh 742; Bac. Abr. “Abatement,” F; 4 Minor, Inst. pt. 1, p. 793.
Oh. 127,s§ 2 Code, provides: “ If a plaintiff or defendant die pending any action, whether the cause of action would survive' at common-law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract.” And by section 4 of the same chapter it is further declared that “in any stage of any case a seire facias may be sued out for or against * * * the heirs or devisees of a decedent who was a party. Or where the party dying * * * is plaintiff or appellant, the person or persons for whom such scire facias might be sued out, may, without notice or scire facias, move that the suit proceed in his or their name. In the former case, after service of the scire facias, or in the latter case, on such motion, if no sufficient cause be shown [680]*680against it, an order shall be entered that the suit proceed according to such scire facias or motion.”
In the case of the death of a defendant, the cause can only be revived against his personal representative, heirs, or dev-isees by scire facias; for when a new defendant is to be' brought into a suit it can only be done by the consent of such party, or by scire facias, as the light to revive by motion is confined by the statute, where the party who has died was plaintiff or appellant.
The cause is not revived by order of the court directing a scire facias to be issued for that purpose, nor yet by the return of the scire facias executed upon the parties named therein, but by the order of the clerk entered at rules, or of the court entered in term by the consent of such parties, or upon the return of the scire facias, that the case proceed in the name of the proper parties.
It is apparent, therefore, that a scire facias which failed to set out the names of the new parties to be brought into the suit would be utterly futile, as the same could never be executed. The- action having abated by the death of the only defendant, no further proceeding therein could be taken, which could in any manner affect the rights of his heirs until they,had been made defendants in the suit. As the plaintiff may elect to abandon his suit by neglecting to revive the same, so he is at liberty to dismiss the same on his own motion, at his pleasure, so long as there is no defendant in the cause to contest his right to do so. When the sole defendant died, the plaintiffs’ action died with him. Having the right to revive the same, against his heirs, they were not compelled to do so, and not having revived the same, their action continues dead.
In this cause the death of Hezekiah B. Copeland was suggested on the record on the 22d of August, 1872, and on that day it appeared to the court that the plaintiffs’ action abated, as the record shows, by awarding a scire facias “against the heirs of said defendant to show cause, if any they can, why this cause shall not be revived against them.” No such scire facias issued, and, so far as the record shows, no person ever afterwards appeared as or was made defendant in the action. In this state of the case, no order or judgment made or rendered therein could in any manner affect or im[681]*681pair the rights of the heirs of Copeland to the land in controversy, nor could they in any manner be bound by such order or judgment, not being parties to the suit, and therefore the heirs of said Copeland were not bound by said order of dismissal “agieed” entered in the action on the 19th of November, 1872; for, not being parties to said action, they are not bound by the recital in said judgment, that, “for reasons appearing to the court, and by consent of parties, this cause is dismissed ‘ agreed.’ ” If, therefore, the defendants in this cause were not bound by the said judgment, and according to the terms thereof, it follows as a necessary consequence that the plaintiffs are not in any manner bound thereby; for it is a general rule that no party is bound in a subsequent proceeding by a judgment unless the adverse party, seeking to secure the benefit of the former adjudication, would have been prejudiced by it if it had been determined the other way.
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Woods, Judge :
Four grounds of error are alleged by the plaintiffs in error, all of which are included in the general proposition that the court erred in giving said instruction to the jury ; and the only question for our consideration is whether this instruction correctly propounded the law arising upon the order of dismissal entered in said first action of ejectment on the 19th of November, 1872. The contention of the plaintiffs in error is that said order of dismissal “agreed” amounted to nothing more than a nonsuit suffered, or a simple order of dismissal made by them upon their own motion; that the sole defendant having died, the action had abated by his death, and not having been revived, there were no defendants before the court, and therefore no consent-order could be entered in the cause; and that if such order had been properly made by consent of defendants before the court, yet the plaintiffs would not be thereby barred from maintaining their present action ; for such order of dismissal, if so made, could not in that action affect the plaintiffs’ right to any greater extent than would a verdict and judgment therein, in favor of the defendants; for, as the law then stood', the plaintiffs could immediately have brought a new action of ejectment against the same defendants for the recovery of the same land. The contention of the defendants in error is that the order of dismissal “agreed” was in contemplation of law not only a dismissal of the action, but was a total abandonment of all such rights as the plaintiffs had in or to the lands in controversy; that such dismissal was a complete bar to the prosecution of any subsequent action between the same parties for the same land.
W e will first consider what was the legal status of the case of John Doe on the demise of Aaron Stockton v. H. B. Copeland. on the 19th of November, 1S72, when this order of dis[679]*679missal “agreed” was entered. It is not pretended that any other agreement was entered into between the parties to said action than what the law will imply from the terms of the order itself, speaking from the condition of the record as it then appeared: for what did not then thereby appear, in contemplation of law did not exist, and, as a consequence thereof, the court could not know what did not so appear. If, then, there was in fact any such agreement made as that mentioned in said order of dismissal, it could only have been made between the parties in said action, who, by the record, were then before the court, capable of entering into an agreement. It is elementary law that to constitute a valid agreement it is essential that there shall not only be a good and sufficient consideration and something to be contracted for, there must be a person able to contract and a person able to be contracted with; and without such contracting parties there can be no agreement, lor without them there could be no reciprocal or mutual assent. 1 Ohit. Oont. 11; Oomyn. Cont. 2. At common-law, the death of either party pending the action (if there be but one on that side) abates it, but it is admissible to revive it if it were original^ maintained by or against the personal representative, if it be a personal action, and if a real or mixed action, by or against the heir or devisee. Davis v. Teays, 3 Grat. 290; Ruffners v Lewis, 7 Leigh 742; Bac. Abr. “Abatement,” F; 4 Minor, Inst. pt. 1, p. 793.
Oh. 127,s§ 2 Code, provides: “ If a plaintiff or defendant die pending any action, whether the cause of action would survive' at common-law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract.” And by section 4 of the same chapter it is further declared that “in any stage of any case a seire facias may be sued out for or against * * * the heirs or devisees of a decedent who was a party. Or where the party dying * * * is plaintiff or appellant, the person or persons for whom such scire facias might be sued out, may, without notice or scire facias, move that the suit proceed in his or their name. In the former case, after service of the scire facias, or in the latter case, on such motion, if no sufficient cause be shown [680]*680against it, an order shall be entered that the suit proceed according to such scire facias or motion.”
In the case of the death of a defendant, the cause can only be revived against his personal representative, heirs, or dev-isees by scire facias; for when a new defendant is to be' brought into a suit it can only be done by the consent of such party, or by scire facias, as the light to revive by motion is confined by the statute, where the party who has died was plaintiff or appellant.
The cause is not revived by order of the court directing a scire facias to be issued for that purpose, nor yet by the return of the scire facias executed upon the parties named therein, but by the order of the clerk entered at rules, or of the court entered in term by the consent of such parties, or upon the return of the scire facias, that the case proceed in the name of the proper parties.
It is apparent, therefore, that a scire facias which failed to set out the names of the new parties to be brought into the suit would be utterly futile, as the same could never be executed. The- action having abated by the death of the only defendant, no further proceeding therein could be taken, which could in any manner affect the rights of his heirs until they,had been made defendants in the suit. As the plaintiff may elect to abandon his suit by neglecting to revive the same, so he is at liberty to dismiss the same on his own motion, at his pleasure, so long as there is no defendant in the cause to contest his right to do so. When the sole defendant died, the plaintiffs’ action died with him. Having the right to revive the same, against his heirs, they were not compelled to do so, and not having revived the same, their action continues dead.
In this cause the death of Hezekiah B. Copeland was suggested on the record on the 22d of August, 1872, and on that day it appeared to the court that the plaintiffs’ action abated, as the record shows, by awarding a scire facias “against the heirs of said defendant to show cause, if any they can, why this cause shall not be revived against them.” No such scire facias issued, and, so far as the record shows, no person ever afterwards appeared as or was made defendant in the action. In this state of the case, no order or judgment made or rendered therein could in any manner affect or im[681]*681pair the rights of the heirs of Copeland to the land in controversy, nor could they in any manner be bound by such order or judgment, not being parties to the suit, and therefore the heirs of said Copeland were not bound by said order of dismissal “agieed” entered in the action on the 19th of November, 1872; for, not being parties to said action, they are not bound by the recital in said judgment, that, “for reasons appearing to the court, and by consent of parties, this cause is dismissed ‘ agreed.’ ” If, therefore, the defendants in this cause were not bound by the said judgment, and according to the terms thereof, it follows as a necessary consequence that the plaintiffs are not in any manner bound thereby; for it is a general rule that no party is bound in a subsequent proceeding by a judgment unless the adverse party, seeking to secure the benefit of the former adjudication, would have been prejudiced by it if it had been determined the other way. Both litigants must be alike concluded, or the proceeding can not be set up as conclusive upon either. Bigelow, Estop. 25; Freem. Judgm., § 159; Petrie v. Nuttall, 11 Exch. 569; White v. Hazen, 24 Vt. 143; Edwards v. McCurdy, 13 Ill. 496; Simpson v. Pearson, 31 Ind. 1; Griswold v. Jackson, 2 Edw. Ch. 461; Bradford v. Bradford, 5 Conn. 127; 1 Greenl. Ev., § 524; Huntington v. Jewett, 25 Ia. 249.
But the counsel for the defendants in error endeavor to evade the force of these well-established rules by insisting that because the judgment recites that it was entered by consent of parties it should be presumed that the defendants must have appeared, and that if it is not a legal presumption that the defendants to the seire facias appeared, then it may be treated as a judgment in favor of the dead man, H.B. Copeland, and therefore, not void, but only voidable, which can not be questioned collaterally in another suit.
To this argument it may be replied that we are not at liberty to presume that any proceeding was had in a cause which does not appear by the record, or that a judgment was rendered against a man, who, the record shows, was dead at that time, or that the defendants to the scire facias appeared, when it does not appear that any scire facias ever issued, or if it did, that any of these defendants were named therein. Neither are we authorized to presume that these defendants appeared [682]*682’'because the judgment recited that it was entered “ by consent of parties.” While it is true that when the record recites a jurisdictional fact, such recital is prima facie evidence in support of the judgment, yet where the record recites in general terms the appearance of the parties, such appearance will be confined to those who have been served with process. Miller v. Ewing, 8 Sme. & M. 421; Dean v. McKinstry, 2 Sme. & M. 213; Torry v. Jordan, 4 How. (Miss.) 401; Puckett v. Pope, 3 Ala. 552; Hubbard v. Dubois, 37 Vt. 94; Boyd v. Bayham, 5 Humph. 386; Freem. Judgm., § 155.
As the record evidence introduced by the defendants clearly shows that at the time the judgment of dismissal “ agreed ” was entered, Hezekiah B. Copeland, the sole defendant in said first action of ejectment, was dead; that the action had thereby abated; and that the same had never been revived,- — we are of opinion that the defendants in this suit, not having been parties to said first action of ejectment, were never in any manner bound by said judgment, and as a consequence thereof, that the plaintiffs were never bound thereby to any other or greater extent than that they had disabled themselves from proceeding further in said action, and that said judgment must be considered as a dismissal of the plantiffs’ action upon their own motion, and therefore does not operate as a bar to the plaintiffs’ present action; and that for these reasons the Circuit Court erred in giving to the jury the instruction asked by the defendants.
Having reached this conclusion, it is unnecessary to express any opinion as to the construction which should be placed upon the term “ dismissed agreed,” occurring in a judgment in a case wherein all the parties to be affected thereby were properly before the court; for no such case is presented by this record; nor is it necessary to consider or determine what effect should now be given to a judgment rendered in 1872, in an action of ejectment instituted before the Code of Virginia of 1849 took effect, for in the case under consideration no judgment touching the merits of the case was entered therein.
For these reasons the judgment of the Circuit Court rendered herein on the 25th day of May, 1886, must be reversed, „ with costs, the verdict of the jury set aside, and a new trial [683]*683awarded, the costs of which shall abide the final trial of the suit, and the cause remanded to the Circuit Court for a new trial.
Reversed. RemaNded.