
    Langendyck and wife against Burhans.
    NEW YORK,
    October, 1814.
    In an action of ejectment by one tenant in common, who has not been ousted, against his co-tenant, the latter may enter into the consentrule,where he does not dispute the title, as to part of the premises only; and the plaintiff may take judgment as to the residue, by default, and recover the mesne profits thereof from his co-tenant.
    
      It seems, that in such case, where the title is not denied, the tenant need not stipulate ter. to confess ou$-
    No defence can be set up in an action for the mesne profits of land recovered under a -ment by default, in ejectment, regular judg-
    THIS was an action of trespass for the mesne profits of two undivided thirds of one undivided fourth of a farm, in Catskill, in the county of Greene. The cause was tried at the Greene circuit, in September, 1813, before the late Chief Justice. A judgment in ejectment, recovered by James Jackson, on the demise of the plaintiffs in this suit, by default, against John Stiles, for two undivided thirds of one undivided fourth of the above-mentioned premises, an habere facias possessionem issued thereon, and the sheriff’s return thereto, that he had caused'the plaintiff to have possession of his term, within mentioned, yet to come, &c., and a taxed bill of costs in the ejectment suit were produced, and, together with the annual value of the land, proved by the plaintiffs on the trial. One action of ejectment only had been brought on the demise of the plaintiffs, and on the service of the declaration therein, the present defendant appeared, and entered into the consent rule specially, that is, to defend as to three undivided fourth parts of one undivided third part of the premises in question; and on the trial to confess lease, entry, and ouster, &c. On the trial of the ejectment suit, the plaintiff recovered one third of one fourth of the premises, for the mesne profits of which a distinct action had been brought, and had judgment by default for the other two thirds of one fourth; to recover the mesne profits of which the present suit was brought. The defendant • proved that, previously to bringing the action of ejectment, the defendant told Langendyck, one of the plaintiffs, that he was willing to divide with him, and did not dispute his having a certain right in the premises; but what that precise right was, the witness could not recollect.
    A verdict was taken for the-, plaintiffs, subject to the opinion of the court, whether the present action was maintainable for the mesne profits of that part of the premises which was recovered by default. If it were not, a nonsuit was to be entered ; otherwise judgment was to be rendered for the plaintiffs.
    The case was submitted to the court without argument.
   Spencer, J.

delivered the opinion of the court. The defendant has misconceived his defence. If a tenant in common, who has not ousted his co-tenant, is sued in ejectment, all the cases agree that he may enter into the consent rule specially, when he does not dispute the title. (7 Mod. 39. 3 Burr. 1897.)

It is well settled, that where the appearance is for part, the plaintiff may sign judgment against the casual ejector for the residue. (2 Sellon, 104. 108.) Here the defendant defended only for the three fourths and one third of a fourth of the premises ; consequently, for two thirds of one fourth there was no defence, and the plaintiff had a right to take judgment therefor. Though I have not met with a precedent of the special consent rule entered into by a tenant in common, who admits the plaintiff’s right to a part, yet I am persuaded it should not stipulate to confess an ouster, with respect to those parts of the premises claimed, and of right belonging to the plaintiff. The consequence would be, that the plaintiff would be bound to prove an ouster, and failing in that, he would be nonsuited. (1 Campb. N. P. 173.)

It is perfectly well settled that a tenant in common is not bound to prove lease, entry, and ouster, if the consent rule confesses it; and in all cases, but that of an ejectment brought to avoid a fine, the confession of lease, entry, and ouster, is sufficient to bar a nonsuit for want of proof of ouster; (3 Burr. 1895.) and particularly in an ejectment by one tenant in common against another. (4 Johns. Rep. 312.)

The plaintiff has regularly taken a judgment by default against the casual ejector for the parts not defended, and, according to the decision of this court, in Baron v. Abeel, (3 Johns. Rep. 481.) no defence could be set up against the action for the mesne profits consequent on the judgment by default.

Judgment for the plaintiff.  