Young v. Drew, 1 N.C. 119, 1 Tay. 119 (1799)

April 1799 · North Carolina Superior Court

1 N.C. 119, 1 Tay. 119

Young versus Drew, and Young versus Harris.

IN these ejectments, the plaintiff declared for the whole tract of land, and gave evidence of a title to an undivided moiety.

The plaintiff cannot declare for a wholetract of land, and give evidence of a title to an undivided moiety.

1 Roll. Abr. 836. 1 Sid. 229. 1 Burr. 326, 330. 2 Bl. Rep. 973.

White for the plaintiff argued,

that he was not bound to declare for the exact quantity he bad a right to recover ; but that it was sufficient if he proved a title for the same, or any less quantity than that stated in the declaration. He cited and relied upon the case of Gaskin versus Gaskin, Cowper 657, as an instance of the recovery of two thirds of the premises comprised in the declaration.

Moore, J.

The plaintiff ought in this case, to have declared for an undivided moiety of the whole tract ; otherwise the action of ejectment will have the effect of a writ of partition ; the Sheriff cannot put the plaintiff in possession of the half he claims, not being stated to be an undivided half, unless he previously makes a division, and ascertains the moiety the plaintiff, is to have. The case cited from Cowper does not resemble the present. That is where one tenant in common recovered against another.

Non-suit.