
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV., 1802.
    Perry v. Walker. Perry v. Middleton.
    A purchaser from one of several co-heirs, may maintain trespass to try title, without joining the other co-heirs: at. least, the question as to' the necessity of joining them, cannot be raised but by plea in abatement. [aide 2 Bay, 461, 462, S. C., and McFadden v. Haley, ante, p. 96.]
    These two cases were decided upon the authority of McFadden v. Haley, ante, 96; on motions Jotnew trials,- afteraonsuits, ordered in the district court of Lancaster, held by Bay, J., on the last circuit.
    The plaintiff brought actions of trespass to try titles to two several tracts of land ; and in both cases it appeared in evidence, that the lands in question had been originally granted to one Hood, who died intestate, in 1798, or 1799, leaving a widow and three children, one of whom couveyed to the plaintiff the whole of the tract, after Hood’s death ; the other co-heirs of Hood, being alive, but not joining or consenting. The defendants had not pleaded in abatement; but the nonsuits were ordered, because it appeared at the trial, that the plain, tiff was not entitled to all the lands he had brought liis action for, but was entitled to an undivided share, jointly with others, who were no parties to the action.
    The counsel for the plaintiff insisted, upon the authority of the case of McFadden v. Haley, that the defendants should have pleaded, in abatement, the causes urged by them to obtain a non. suit; in case it should be conceived necessary, or proper, that all the c.o-heir3, who had not sold, together with the alienee of one of the co-heirs who had disposed of his share, should have joined in the action : but they further insisted, that inasmuch as the plaintiff ■was tenant in common with the other co-heirs, who Were parceners, they could not join in the action, for they did not claim by the same title. And, therefore, that the tenant in common ought to sue alone.
   The judges were of opinion, that the nonsuits ought to be set aside, and new trials granted. They did not conceive it necessary to determine whether a tenant in common may sue jointly with parceners, in such cases as these, or not. Since admitting it to be so, the defendant must plead it m abatement, if the tenant in common brings his action separately. See Runningt. 94. Co. Litt. 197. 3 Bac. Abr. 218. 1 Salk. 392.

Bay, J.,

gave no opinion.  