Den ex dem Godfrey v. Cartwright, 15 N.C. 487, 4 Dev. 487 (1834)

June 1834 · Supreme Court of North Carolina
15 N.C. 487, 4 Dev. 487

Den ex dem Edmund S. Godfrey, et. al. v. Gideon Cartwright.

On the several demise of one tenant in common, the plaintiff in ejectment may recover his term in the undivided share of that tenant, hut the lessors of the plaintiff must at their peril, take out a writ of possession only for land to which they have title.

Ejectment, tried at Camden on the Spring circuit of 183á, before Swain Judge.

The declaration set forth a demise by the lessors of the plaintiff of the several estate of the wife, and upon Hie trial it appeared that Isaac Guilford the father of the feme lessor, had died seized of the land in dispute, leaving three children to whom it, together with several other tracts of land, descended. The plaintiff produced copies of two proceedings in partition, by which the land described in the declaration had been assigned in severalty to his lessors. Both of them were made upon the ex parte petition of William Guilford, a co-tenant, and one of them was incomplete, there being no final judgment. All the co-tenants were present when the division was made under an order in the other, and assented thereto. The defendant showed no title, and contended that the proceedings in partition were inoperative, and that the lessors of the plaintiff could claim no benefit under them.

The jury under the directions of His Honor returned a general verdict for the plaintiff and the defendant appealed.

Kinney for the defendant.

Iredell contra.

Daniel, Judge.

The Counsel for the plaintiff admits that he is not entitled to lands described in the declaration, by virtue of either or both of the attempted partitions of the lands mentioned in Die case; they are irregular and illegal. But as Isaac Guilford was entitled to the land in fee simple at the timeofhis death the same despended to his three children as heirs at law. That *488 Lydia one of the lessors of (he plaintiff is one of the heirs of' Guilford, and in that character liad a right to demise the lands described in the declaration, so as to enable the nominal plaintiff to recover his term in an undivided third of all the lands therein described. On a several demise of the whole tract of land, by one tenant in common, the plaintiff in ejectment may recover his term of such an undivided portion of it, as the lessor can prove title to on the trial. The more correct way of proceeding is for the jury to find the defendant guilty of the trespass and ejectment in the undivided portion of the lands described in the declaration, which the lessor of the plaintiff proves title to on the trial, and then the judgment shall be rendered accordingly. (Jtrchb. Forms, 830, 38 L.) In the present case the jury have found a general verdict, and the nominal plaintiff must have judgment that he recover his term. The lessors of the plaintiff, when possession shall be delivered to them under the execution,must at their peril take possession only of such lands as they are entitled to. We think the judgment must be affirmed.