
    Doe on demise of Nixon’s heirs v. Potts.
    J-From Mecklenburg.
    Tenants in common may recover on a joint demise.
    
      Ejectment tried before Norwood, Judge. The lessors of the Plaintiff claimed title as heirs at law of Francis Nixon, and proved that Francis Nixon died seised and possessed of the premises in question, and offered evidence that they were the heirs at law of Francis Nixon. To this evidence the Defendant’s counsel objected, on the ground that the demise laid in the declaration was joint, and the evidence offered was to prove title as tenants in common. The objection was overruled, and. the evidence received, and Plaintiffs had a verdict. A new trial having been refused, and judgment rendered. Defendant appealed.
    J. Henderson for the Defendant.
    Tenants in common cannot make a joint demise — (Bunnington 94, 222 — 2 Wits. 284 — Selw. N. F. 744 — Butter N. F. 107 — Cro. Jac. 166 — 2 Chilly’s FI. 401.)
    If two tenants in common join in a lease, and this be pleaded as their joint lease, it is ill, and though it appeal’s to the Court that it has its operation as several leases, yet the party not having pleaded it so, the Court will not adjudge it against the party’s plea — (1 Ld. Bay. 404.)
    
      Wilson, contra.
    
    Tenants in common may recover on a joint demise — (2 Bac. 428 — 2 Wils. 232 — 2 Caine’s Bcp. 169, 174 — 2 Blackst. Rep. 1077.
    
   TTat.t,, Judge.

In England, when tenants in common sued in ejectment, it was necessary that a separate demise should be laid by each, or that that they should join in a lease to a third person, who would demise to the Plaintiff’in ejectment; and so the law has-been considered here, where tenants in common became such otherwise than by descent. In this case, it is stated that the Plaintiffs are the heirs at law of Francis Nixon, and under our law of descents hold as tenants in common. I apprehend the moving reason with the Legislature, when'they framed the law, was, to take away survivor-ship, which would have followed if they had held as joint tenants. But as the law stands, what is their real situation ? They are seised per my et per tout; have a unity of title, interest and possession, and each may demise the whole. If so, the title which they shew supports the joint demise laid in the declaration, and judgment, I think, should be entered for them.

Henderson, Judge.

A lease for years is defined to be a contract for the possession of land. The title remains in the lessor: the possession of the lessee is the possession of the lessor. All actions in which the title is demanded, are to be brought against the lessor. It is a good plea in such actions, for the lessee for years to say, that he has nothing but a lease for years; and a recovery suffered, or a fine levied in an action brought wherein he is Defendant, may be avoided by plea, by any person against whom such fine or recovery is offered in evidence. He is not liable to be called on to perform the feudal duties : he cannot vouch, pray in aid, nor is he considered as having anything to do with the title of-the land, and there is no privity as to title between him and the owner of the land. A recovery suffered by the owner, discharged his right to tiie possession ; for even that existed only in contract with bis lessor, and all these flow from one source, to wit, that his lease is a mere contract for the possession of the land, and as not having an interest in the title or land itself.. From these principles I deduce, that tenants in common' may make a joint demise, that is, a lease for years; and that it can be truly s'aid that they did demise* that is, jointly demise $ tor, having a joint possession, each demises the whole possession as' much as joint tenants. It is true, they cannot make a joint lease for life, gift in tail, feoffment, or conveyance in fee, for they have not a joint title, but a several one; therefore, each possesses his title in seve-ralty : and I can account no otherwise for the uniform decisions on the subject, that tenants in common cannot make a joint demise to try title in ejectment, or that it cannot be described as their demise in pleading, than in this way: that it .being established that they could not; make a joint lease for life, gift in tail, or feoffment in fee, they could not make a joint demise for years ;• without reflecting, that in the one case a joint estate must pass to justify the description that they conveyed, or, which is the same thing, that they jointly conveyed ; whereas, the interest which they did pass was a several and not a joint interest, they being in by several titles $ but that in a lease for years, only a right to the possession passes, and they have a joint possession, the only unity which connects them with each other. It is to be observed, that it is admitted on all hands, even in the very authorities which say that this declaration would be bad, that the interest passes, but that it should in the pleadings be called a several and not a joint demise. Were I overturning decisions which fixed the rights of property or persons, or changing in the least the rights ’ of any individual, I would yield to such a current of decisions, ' but it cannot, by any probability, affect the rights of any one. Chief-Justice Kent, in Jackson v. Bradt, (2 Caine’s Rep. 169,) has shortly hinted at the same principle which governs me in this decision ; and although, for this and other reasons, he decided in conformity to what I think should be the decision in this case, I cannot yield my assent to any other ground which he took; for certainly the question is not, whether tenants in common can make a valid lease to pass their interests, when they join in the conveyance, but whether it can be gaící in pleading, that they did demise, I think the declaration is good, and that there should be judgment for ' the Plaintiff.

Tasxor, Chief-Justice, concurred in the opinion that judgment should be so rendered.  