
    M‘Fadden and Wife against Edward Haley.
    
      Columbia,
    
    1802.
    Where one-joint tenant or tenant in common sues for the whole* of a tract and only prove» himself enti' tied to one-third, he shall not be non-suited on that account, but shall have his verdict for that part to v/liich he is entitled ; and. the judgment shall be moul-ded on it so as to answer the ends of justice.
    TRESPASS to try title to land, in Sumpter district. Nonsuit ordered. Motion to have the order for nonsuit rescinded.
    The plaintiffs deduced a regular title to the premises in question, to one James Dickey, deceased, the former husband of Mrs. MiFadden, from Arthur Graham, who obtained a grant for the same on the 8th of February, 1773 ; and it appeared in evidence, that the said James Dickey died intestate, leaving behind him his widow and three children; and that after the death of Dickey, his widow intermarried with the plaintiff, Robert Af-Fadden, before the commencement of this action.
    The defendant set up a title to the land, under a grant to one Doughty, in June, 1786 ; but could not make out any title to himself. He then moved for a nonsuit, oa the ground, that it had appeared in evidence from the plaintiff’s own shewing, that his wife was only entitled to one undivided third part of the land, under our act of distribution of intestates’ estates ; whereas, by the declaration, it appeared he had sued for the whole.
    The defendant’s counsel observed, that the plaintiffs’ writ demands the whole land, when in fact he had proved himself entitled only to one undivided third. He then contended, that a joint-tenant, or tenant in common, could not maintain a separate suit without summons and severance ; and it was not even alleged, that there had been any partition made in the present case.
    The presiding Judge (Johnson) was with the defendant on the first ground, being of opinion, that if the plaintiff had intended to claim only an undivided third, he should have sued for that third and no more; and upon this ground the nonsuit was ordered.
    
      This, therefore, was a motion to set aside that nonsuit.
    In support of the motion, Mr. Standing,
    
    in behalf of the plaintiff, contended, that if the defendant had meant or intended to have taken advantage of this point, on which the nonsuit was ordered, he ought to have done it in pleading; and that it was too late after the general issue pleaded. For it is clearly laid down, that one joint-tenant, or tenant in common, cannot maintain an action against another, because possession of one is possession of both, and if he does, it is good evidence upon not guilty. But if one joint-tenant or tenant in common, brings an action against a stranger, in that case a defendant may plead it in abatement, but cannot take advantage of it in evidence. Salk. 290. 2 Lev. 113. Cro. Eliz. 544. But he urged, that although one joint-tenant could not bring an action of trover against another, he might against a stranger. So he might maintain quare. clausum fregit against a stranger, because the damages in such case shall enure to the benefit of the whole. Tenants in common may bring separate actions for their shares. Sunnington, 94. So where a man sues for the whole, or one half, he may recover according to the extent of title or right, a third, a fourth, or one half. Sunn-103. 1 Esp. 117. So also it is laid down in the case of Denn v. Purvis et at. 1 Burrows, 326. that a part may be recovered on a demand for the whole. This last case, he said, was so full upon the point before the court, and referred to so many authorities on the subject, that he would not dwell longer on it, but submit the case to the court.
    Mr. M'Credie, contra,
    observed, that as the plaintiff in this action, had not stated himself to be a joint-tenant or tenant in common with others, it was impossible for him to plead it in abatement. It would have been pleading to a matter which did not appear to be on the face of the proceedings ; and there was no way of taking advantage of it, but upon the evidence offered on the trial; for it was upon the close of the testimony that the fact of his being a joint-tenant appeared. That until the plaintiff’s testimony ended, the defendant could not tell but that he might have made out a title to the whole. It was at that stage that he availed himself of the advantage which he conceived that the law gave him of moving for the nonsuit, which he trusted had been very properly ordered.
    With respect to the action itself, he said, he was Under strong impressions that it could not be maintained by the present plaintiff. In this action, every man must recover according to the strength of his fair title, and if he claims the whole, and only proves himself entitled to a third, fourth or fifth part, he fails in his claim to the premises mentioned in the declaration. He admitted, that if he had claimed as joint-tenant or tenant in common one third or one fourth, he might have recovered his proportion according to the extent of his right, but as he had stated that he was seised in fee of, in, and to the whole of the premises in question, he must therefore recover the whole or none. He next contended, that no judgment could be entered on this record, because the plaintiff did not claim as a joint-tenant or tenant in common, nor could any writ of possession issue to the sheriff, to give him possession of an undivided third part, which had never been designated or laid off.
   The Judges observed, that this was a new case in this country, which presented itself fdr their consideration, as no case had hitherto occurred in which the joint-tenants or tenants in common had not all joined in the action, or in which a division or partition of the lands had not been made, so that each individual could prove with sufficient certainty the part or share he was entitled to. In this case, however, the plaintiff sues for the whole, and proves on the trial that he is entitled only to one undivided third. Upon Shis ground the nonsuit was moved for and granted. As to the regularity of calling for the nonsuit, the judges had n<> doubt about it; as the plaintiff had not stated himself to Le either joint-tenant or tenant in common in his writ or decía-ration, the defendant could not have pleaded in abatement. If such a plea had been put in, it would have been a plea to • a matter dehors the record. Upon this point, therefore, if the subject matter itself had been a good ground for a non-suit, it was made at the proper stage of the cause, and could not have been made or taken advantage of in any other way, or at any other time.

As to the action itself, it appears to be a plain and reasonable one, that the plaintiff should recover agreeably to the extent of his right; and if he demanded more than he was entitled to, that was no reason why he should not recover what he had a right to. Every day’s experience proves, that in our courts, parties in all kinds of suits are in the constant practice of recovering less than they demand in all' personal actions, though they cannot possibly recover more. So, in actions for real property, if a man demand forty acres, he may recover twenty, or any less quantity, according to his right and title. And, in like manner, if a man sue for the half or moiety of a tract of land, he may recover a third, fourth, or sixth part. So also, if he sue for the whole, and only prove himself entitled to one third, he may recover that third. The principle seems to be well established in the books. The case of Abbott v. Skinner, in X Sid. 229. is strong in point as to the recovery of less than the demand, and the doctrine is confirmed in the case of Denn v. Purvis, 1 Burr. 329.

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, andform apart of the thing 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. 3 Bulst, 184. And although the sheriff cannot give possession of any particular part, it establishes the right of the party to a share, which, when divided and laid off, may be delivered to him by the , . ~ shcriix*

Rule for setting aside the nonsuit made absolute*

AH the Judges present.

Mr. BRevaud gave no opinion, having been concerned for the plaintiff in the case when at the bar.  