
    Roberts vs. Pharis’ lessee.
    Where a joint demise is laid in the name of three, two only of whom have title to the land in dispute ;a general verdict and judgment must be given for the plaintiff.
    The declaration in this case, sets forth a joint demise from John, James and William Pharis, for four hundred acres of land, described by butts and bounds. William Pharis, the ancestor of the lessors of the plaintiff, devised this tract of land as follows: To John Pharis, one hundred acres, where John Embry now lives; and 'the rest of said land to James Pharis and William Pharis, to be divided between them, according to quantity and quality. The Embry place is the four hundred acre tract. The jury rendered a special verdict, finding iCthe issue in favor of the plaintiff; if in the opinion of the court, a judgment can be rendered in the plaintiff’s favor, consistently with the following facts, they find in favor of plaintiff, to- wit: That John .Pharis, one- of the lessors of the plaintiff, has title to one hundred acres, part of the land described in the declaration, including-the Embry place, which is situated in the north-west corner of the tract described in the declaration, that it does not appear to the jury that said one hundred acres has. been laid off and-set apart by butts and boundaries, yet the same does not include any part of the interference claimed by the defend • aut) (Roberts.) That James and William Pharis, the ’ other lessors of the plaintiff, have title to the balance of the land described in the declaration, and including the interference claimed by (Roberts) the defendant. That said John, holds said one hundred acres, and that said James and William hold the balance of the land in the declaration described, under devises from their ancestor, the one to said John, and the other to said James and William. Should the law, in the opinion of the court, authorize a joint verdict in favor of the lessors of the plaintiff, the jurors so find. If the law is for said John for his one hundred acres, and for said James and William, for the balance of the land, they so find. If for James and William only, they so find. But if in the opinion, of the court, neither said John, nor said William and James shall be entitled to judgments on the foregoing facts, then, the jurors further' say, they find the issue in favor of the defendant, (Roberts).” The court gave judgment on this finding for plaintiff, from which an appeal in error is prosecuted in this court.
    
      Wm. II. Hart and Jl. Cullom, for plaintiff in error.
    It is contended for the plaintiff in error, that this case does not involve the question as to whether or not, tenants in common, can or cannot join in an action of ejectment; nor whether, if they do join, and one or more shall be barred by the statute of limitations, a recovery can be held by the others. But,'the question is this, if A owns White-acre, and B owns Blackacre, can they join in an action of ejectment on a joint demise of Whiteacre and Black-acre, and recover against I), who is in possession of Whiteacre only? The jury have expressly said, that the one hundred acres of John, including the Embry place, does not include any part of the interference claimed by defendant (Roberts;) and that the balance of the lands described in the declaration, and including the interference with Roberts, is held by James and Wil-7 ^ Iiam, the other lessors. The court rendered a .general judgment for all the land in the declaration, in favor of all the lessors of the plaintiff. It is laid down in Run-nington on Eject. 221; that each of the lessors on a joint ■demise, must have an interest in the whole premises. But suppose this is not the law, still, as the lessor John had no interest in the land claimed by Roberts, as is expressly found by the jury, a judgment could only have passed for the other lessors, James and William.
    It may be insisted that this is taking an exception to the decláration after issue joined on the title 'only, which is forbidden by the act of 1801, chap. 6. But no objections are taken to the declaration, either for form or substance. The declaration is perfect, and in legal form. The objections are taken to the title proved on the trial; to the sufficiency of that, which was alone in issue. The plaintiff alledged a title in three lessors to the land claimed by Roberts. The proof shows a title in only two; and yet all have recovered. The lessors are the real plaintiffs in the suit, and if this judgment must stand, then, notwithstanding the separate titles held by the lessors, prior to the trial; from thence, they are the owners of the whole four hundred acres, and may require, partition thereof, under their titles, as established by the judgment, one third to each, according to quality and quantity.
    
      Sam Turney and Wm. B. Campbell, for defendants in error.
    The judgment of the court is correct, because,
    ' 1st. The Pharis’s were tenants in common of the land; until a partition; and tenants in common may join in a demise of the premises when they claim under the same title, upon a severance of the tenancy in common. The English rule was different, yet there they Have seized upon slight circumstances to give the right to-a joint demise. 2 Yerger, 229; 2 Cain’s Rep. 175, and note; 12 John Rep. 185.
    2d. The statute of 1801, chap, (j, sec. CO, says, no-objection to form or substance shall be allowed to any declaration, when the general issue is pleaded, and issue joined on the title only. Here the general issue is pleaded, and a trial to be had upon the title only. He confesses the joint lease to the plaintiff, his entry upon the land, and ouster from the possession by defendant. This is sufficient evidence of ouster to entitle the plaintiff to a verdict. Although on the trial it may appeal- that plaintiff’s lease from one, does not cover the land in dispute, yet John Den being the plaintiff, is entitled to recover that part of which the defendant is in possession; and which is embraced in the demise of the others. 13 John. Rep. 185.
   Catron Ch. J.

delivered the opinion of the court.

Three lessors of plaintiff made a joint demise in ejectment to the nominal lessee, for the whole land. One of the lessors had title to one hundred acres in the north-west corner of the tract, which was not severed, yet could not reach the disputed part, and of the residue of the tract sued for, the other two lessors were tenants in common. The jury found the better title in the plaintiff, and submitted these special facts to the court for its judgment, which was rendered that the plaintiff recover; from which there was an appeal in error.

The counsel for Roberts assume, that three having made a lease to John Den, the fictitious plaintiff, and only two having title, a general verdict cannot be given. The lessee had vested in him the whole title, and that one joined in the lease, having no interest in the premises, Could not affect the substance of the recovery. The title could be tried, as contemplated by the act of 1801, chap. 6, sec. 60. No difference in principle can be perceived between this case, and that of Barrow and Nave, (2 Yer. 227.) These three lessors demised in one court, as here, one of the three had title to a third of the premises, which the fictitious lessee recovered; so much having been vested in him.. Suppose a lessee in fact, had different leases from different persons, and were to sue in ejectment; he could give in evidence all his title papers, and recover upon such as vested an interest in the disputed land. Had the three Pharis’s made an actual lease of the disputed land, two only having the estate in it, none can douht the lessee could have recovered it. To this end, no distinction between the fictitious and an actual lessee can be admitted by our statute. The judgment will be affirmed.

Judgment affirmed.  