
    Scace Brook Watson vs. William Hill.
    One tenant in common may maintain an action to try titles, and can ve cover whatever proportion of land be may show himself entitled to.
    Sy the act of 1797, if a person die intestate, leaving neither wife, child, or children, or lineal descendant ¡ but leaving a father or mother, and brothers and sisters, or brother and sister, or brothers or sisters, one or more, the estate, real and personal, of such intestate, mus' be . equally divided amongst the father, or if he be dead, the mother and such brothers and sisters as may be living at the time of the death of the intestate, so that such father or mother, as the case may be, and each brother and sister so left living by the intestate, shall each take ,an equal share of his estate, real and personal.
    Marion district — ‘March Term, 1821, Tried before Mr. Justice Johnson.
    
    This was an action of trespass to try titles, in which the jury found the following special verdict:
    “ We find the land in dispute was granted to 'fames 'Watson, who died since the year 1798, without issue and intestate, seized and possessed in fee of the said lands, leaving the plaintiff, his father, and brother, Scace Brook Watson, jun. and four sisters, Leonora, wife of James Balls, Sarah, wife of Bryan Ralls, Elizabeth, wife of' Dawson Waters, Polly, wife of Jesse Ford, then and still living. We also find the defendant guilty of the trespass. And if the court should be of the opinion, the plaintiff is entitled to recover in this action, we assess his* damages at five dollars.— But if the Court should be of opinion he is not entitled to recover, we find for the defendant.”
    A motion was now made for leave to enter up judgment on the above special verdict, for one sixth part of the land.
   Mr. Justice Colcock

delivered the opinion of the Court

One question involved in this case has been long settled. If one joint tenant or tenant in common sue, he shall be permitted to recover whatever portion of the land he may shew himself entitled to. (McFadden and wife vs. Haley, 2 Bay’s Rep. 460. George Perry vs. Thomas Middleton. Ib. 539.) In the first case it is said, “there Is no necessity that the verdict should agree precisely with the declaration. All that is necessary is, that the thing for which the verdict is given should be comprised in and form a part of the tlúng demanded. The verdict may be for whatever the party can prove a right to, and the judgment may be so moulded on it as to meet the substantial justice of the case.” And 2 Bulst. 184, is referred to. In the latter case it is said to have been settled in other cases as well as the case of McFadden vs. Haley. Under the construction of the act of 1791, the plaintiff would have been entitled to the whole tract of land. But the amenda-tory act of 1797, (1 Brev. Dig. 426. 2 Faust, 146,) enacts, that front and after the passing of the act, “ in all cases in which any person shall die intestate, leaving neither wife, child,'or children, or lenial descendant; but’ leaving a father or mother, and brothers and sisters, or brother and sister, or brothers or sisters, one or more, that the estate, real and personal, of such intestate, shall be equally divided amongst the father, or if he be dead, the mother and such brothers and sisters as may be living at the time of the death of the intestate, so that such father or mother, as the case may be, and each brother and sister so left living by the intestate, shall each take an equal share of his estate, real and personalby which, the father is entitled to one sixth part of the said tract of land ; and it is therefore ordered that he have leave to enter up judgment for one sixth part of the land described in the declaration, and the damages assessed by the jury.

C. Mayrant, for the motion.

Witherspoon, contra.

Justices Nott, Johnson, Richardson, Huger and Gantt, concurred.  