
    George Perry against William Walker.
    
      Columbia,
    1802.
    One joint-tenant or tenant in common, who sues fo.' the whole of a tract of land, shall not be nousuited, but may recover according1 to the extent of his right. See the foregoing case of jiPFadclen & •wife v. Haley.,
    
    TRESPASS to try title to 323 acres of land in Lancaster district. Nonsuit ordered. Motion to rescind the order of the circuit court, and to restore the cause on the docket.
    The plaintiff produced a grant to one John Hoad, dated 6th June, 1736, for 323 acres of land. It was also proved that Hood, the grantee, died intestate some time after the date of the grant, and that his eldest son, John Hood, had conveyed 100 acres, part of the above tract, to the plaintiff in this action. That John Hood, the son of the grantee, died intestate, leaving three children; so that it came out that plaintiff was only a tenant in common with the children of John Hood, the younger, deceased, for 100 acres of > -Xil'S,
    
    At this stage of the cause, the defendant’s counsel moved for a nonsuit, as plaintiff by bis writ and declaration had -demanded the whole of the 323 acres, and had only proved himself a tenant in common in one undivided 100 acres, there never having been any partition or division.
   The presiding judge (Bay)

was of opinion, that as there had been no partition or division of the property, and as plaintiff had claimed the whole, and not his third or u.ndi-vided interest only, that he could not maintain this suit, and therefore ordered a nonsuit.

This was, therefore, a motion to set aside this nonsuit, •which was ordered accordingly, upon the principles and authorities of the next preceding case of M'Fadden and wife v. Haley.

All the Judges present.  