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Holdfast v Shepard.

on the demise of two persons, who were with others the heirs at law of Jeremiah M. King, from whom the land descended. The demise was of the whole of the premises and the verdict was a general one of guilty. The present action is brought at the instance of the two persons, on whose demise the recovery in ejectment was made. On the trial the defendant moved the Court to instruct the jury, that they could find only such aliquot parts of the rent and damages, as those two persons were entitled to, as some of the heirs of King. But the Court refused to give the instruction prayed for; and directed the jury to assess the damages to the whole value of the profits from the day of the demise, to that of the plaintiff's lessors going into possession. From a verdict and judg ment accordingly the defendant appealed.

Iredell, for the plaintiff.

J. H. Bryan, for the defendant.

RUFFIN, J. C. The Court thinks the law was not cor. rectly laid down to the jury. It is certainly most proper and generally best answers the purposes of justice, that the verdict should specially state the interest of the lessors of the plaintiff, when these are several, or when only some of the tenants in common bring the suit. But as the party may not be prepared always to show his particular share, and the defendant is guilty, if he hath ejected the plaintiff from any part of the land, to which he was entitled under the lease, it has become a practice to render the verdict in a general form, even when the whole of the premises is demanded. The reason is, that the Court deems the action fictitious to many purposes, and therefore keeps it under its control, and will, in a summary way, correct any abuses committed under color of such general demise and verdict. Hence it has been commonly said in such cases, that the lessors

Holdfast v. Shepard.

of the plaintiff take possession at their peril. Upon that ground it was, that the judgment was affirmed in the suit between these parties, as was then stated; and in so holding, the Court only followed previous cases. In Cottingham v. King, 1 Bur. 629, Lord MANSFIELD mentioned, that in the fictitious action of ejectment, the plaintiff' is to show the sheriff and to take possession, at his peril, of only what he has title to; and if he take more than he recovered or showed title to, the Court will in a summary way set it right. He said the same in substance in Connor v. West, 5 Bur 2674; and in Roe v. Dawson, 3 Wils. 49, the defendant was restored to certain shares, to which the lessors of the plaintiff had not entitled themselves. There can be no doubt, then, if the sheriff in this case turned out the defendant from the premises altogether, and put two lessors of the plaintiff into possession of more than their shares, that he did wrong, and the Court upon application would order restitution; for the recovery of one tenant in common is not a recovery for all of them, and does not entitle him to take possession for all. That is clear from the fact, that one tenant in common may recover from another in this general form and may then bring his action for mesne profits. Cutting v. Derby, 2 Wm. Bl. 1077. Indeed, one of the tenants in common may be barred of his entry by the statute of limitations and the other not, because as here, she was a feme covert. A person thus entitled to but a share is let in according to his title. How the fact in this case is, does not distinctly appear. If the parties only entered according to their title, they certainly cannot recover in respect of the shares of which the defendant remains in actual possession. But we rather understand the case to be, that the defendant was put out altogether. Even in that case, however, we hold that no more than the shares of the parties, who brought the former and present actions, can be recovered; for properly they are in

Holdfast v. Shepard.

only of their own shares, and the possession of the other undivided parts is, by legal intendment, either in the other heirs of King or the present defendant. If in the lat ter, then plainly the action will not lie in respect to those parts; and if in the former, they may still sue for their shares of the profits and the defendant could not plead in abatement to their suit, after having omitted to do so in the present. Taking the case, then, any way, the re covery ought to be for only the proportion of the profits, which belong to these parties as some of the owners. The manner of bringing the action in the name of Hold. fast can make no difference; for he can have no better right than his lessors had.

There was also a question made upon the statute of limitations; but the facts appear so imperfectly in the transcript sent here, as not to be entirely understood; and therefore nothing can be said on it.

PER CURIAM. Judgment reversed and venire de novo,

29

DEN EX DEM HARRIS S. PHELPS : JOSEPH B. LONG.

Where a person, already in possession of land, takes a lease from another, and holds over after his term has expired, whether this is a case coming within the provisions of the Act, Rev. St. Ch. 31, Sec. 51, requiring bonds from tenan's refusing to surrender possession, &c. Quere?

But in all cases where the landlord wishes to avail himself of the provisions of that Act, he not only must state the lease and that the term has expired, but he must also set forth in his affidavit explicitly or in such a manner that the Court may necessarily or fairly draw the inference, that the tenant, after the term expired, had refused to surrender the possession.

What notice to quit from a landlord to a tenant is required in this State,

Quere?

Where a person was sued as casual ejector and the Court improperly refused him permission to plead, upon the ground that he was a tenant holding over and therefore bound to give a bond as required by the Act, Rev. Stat. Ch. 31, Sec. 51, when it did not appear that he had refused to deliver posFession, and thereupon entered judgment by default against them. Held, that he was entitled to an appeal.

Appeal from the Superior Court of Law of Washington County, at the Fall Term, 1848, his Honor Judge BAILEY presiding.

The declaration is entitled of September Term 1848, and was served on Long, as the tenant in possession, the 24th of August of that year. The demise is laid as of the 10th of February, 1844. At September Term, Long applied to be admitted as defendant, offering to give bail and enter into the common rule, and plead not guilty. But the counsel for the plaintiff objected to his being allowed to plead; and in support of the objection he filed the affidavit of the lessor of the plaintiff, in which he stated, "that in the year 1839, Joseph Long proposed to rent of him the tract of land, which the affiant had bought of John Chesson, and on which the said Long

Phelps v. Long.

then lived, being the premises described in the declaration that they agreed upon the sum of $25 per annum, and Long gave his note for the amount, which he paid. in 1840 that he continued in possession in 1841, and gave his note for the like amount and continued to occu py it, and gave notes for the rent in 1841 and 1842; and, that in August 1843, affiant gave notice to said Long to quit possession and to stop the tenancy." Thereupon the Court ordered, that Long should not plead unless he gave a bond with sufficient penalty and sureties, with condi dition, that he would pay the lessor of the plaintiff all such costs and damages as should be recovered in the suit; and, Long declining to give such bond. judgment final was rendered against the casual ejector, and Long appealed.

W. H. N. Smith, for the plaintiff, submitted the following argument:

It is submitted that the Act, in pursuance of which this judgment was rendered, is intended to embrace all cases, where the relations of landlord and tenant exist. It pro vides a remedy for the former against the latter, holding over after the expiration of their term. Whenever, therefore, this relation has been established, and the term has expired, this proceeding is authorised on affidavit made by the lessor.

The affidavits in this case prove the relation to have existed and to be determined. The contract stated there. in creates the relation of landlord and tenant between the parties with all the fights and duties, as well as remedies, incident to it. Thenceforth, whatever may have been the character of the previous possession that possession is changed into a tenancy, and the party, though holding adversely before, by his own Act, be comes the tenant, holding under the title of his lessor. Clapp v. Cope, 1 D. & B. Eq. 177.

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