
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1801.
    McFadden v. Haley.
    The widow of ail intestate may maintain an action of trespass to try title’ to land of her intestate, without joining her co-heirs; and no advantage cafí be taken of her suing alone, except by plea in abatement, [vide 2 Bay,- 437, S. C. Boyleston v. Córeles, 4 M‘C. 144. Black v. Steel/ 1 Bailey, 307. Perry v. Walker, post, next case.]
    This was an action of trespass to try title, brought in the district* court of Sumter. The plaintiffs claimed the land under the act for the distribution of intestates estates. The intestate, James Dickey, died after the passing of that act, viz. in February, 1791, leaving a widow, the plaintiff, Mrs. McFadden, and more than one child.The plaintiff therefore claimed as co-heir, entitled to one third of the tract of land in dispute. The action was trespass to try titles/ in the usual form, not stating the plaintiffs’ title, as in actions of ejectment. At the trial, before Johnson, J., it was objected, that the plaintiffs having, by their action, claimed the whole of the land in question, and it having appeared from the evidence produced on their own part, that they were only entitled to one third, it was a material variance, and such defective proof, as was insufli. cient to maintain the action as brought; and, therefore, that the’ defendant was entitled to a nonsuit. This objection was made after tho defendant had attempted to introduce evidence on his part,- and had failed. The court, however, ordered a nonsuit; and the defendant now moved for a new trial, on two grounds : 1. That tho evidence given at the trial was sufficient to maintain the action as brought, and ought to have gone to the jury. 2. That the court had no power to order a nonsuit against the consent of the plain-tiffs ; and especially, after the defendant had proceeded to offer evidence in his defence.
    The argument for the plaintiffs, in support of the motion, was as follows : The action as brought, and the proceedings therein, are sufficient, supported by the evidence adduced at the trial, to entitle the plaintiffs to recover; and the jury should have been allowed to find a verdict for the plaintiffs, if they had been disposed to have done so. The act of February, 1791, abolishing the rights of primogeniture, and for distribution of intestates estates, lays down the following rule or canon of descent: “ If the intestate shall leave a widow, and one or more children, the widow shall take one third óf the said estate, and the remainder shall be divided between the children, if more than one ; but if only one, the remainder shall vest in that one, absolutely, forever.^ The estate transmitted by the act, does not strictly agree with the description Of any estate known to the laws of England. There is, however, agreat resem. blance between the estate thus transmitted, and that kind of partnership estate in England, denominated co. parcenary. Strictly speaking, we have no estates in this country, exactly agreeing with the estates described in the laws of Englandfor since the establishment of our independent republican government, we never apply the word tenilnt to the' owner of an estate in fee simple, whereas, by the English law doctrine,‘respecting real estates, all such estates are holden of some superior proprietor. With us, all tenures, as they subsisted under the British government, in common socage, or fee simple, have been turned into allodial estates, which are independent of any superior proprietor, or lord paramount; ih like manner as in England, by the statute, 12' Car. 2, c. 24', all tenures, by the common law, Were turned into free and common socage. P. L. 99. But the resemblance of the estate by succession, ab intestato, hi this country, to the estate held in co-parcenary in England, being so strong, and holding'in so many particulars ; ‘ and the doctrine applicable tó' Co-parcenary estates, being applicable, in most particulars, to the estafe bjr intestacy ; the latter may, with great propriety, be considered in the light of a co-pareenary estate, and be aptly enough denominated án cátate in parcenary,' and the co-heirs5 called parceners.' In this' comparative view, let" us consider the’ nature and qualities of the estate in question, and the rules ancf principles of law respecting the Same*, as' they regard the questions now in debate ; and see what cohclusion can be fairly and legally drawn; to support the position contended for, on this motion.' “ Parceners; by the common law,” says Littleton, sect. 241,“ aré' where tenant in fée, or tail; dies, leaving several daughters, and no' son, or several sisters, áhd no issue, ’ or brother ; or several aunts,' &o., in which case, tlie lafids descend among all the daughters, sis. ters, or aunts, who make but one heir.” a Parceners cannot be" otherwise than by descent.” Litt. sect. 254. Coke, ih com.' menting on Littleton, says, “ all lands of which partition may be made, shall descend in parcenary.” Co. Litt. 164. And that “ till partition, they have but one entire freehold.” Ib. “ If one parcener dies, the heir of the deceased shall be parcener with the survivor.” Ib. “ A descent to parceners shall be in capita, not in stirpes. Therefore, if A, has two daughters, and one dies, and. leaves three daughters, and then Á. dies, the three daughters taii-S with the aunt, by descent, but the aunt shall have as much as all die daughters of her sister.” Ibid. This doctrine does not at all disagree with the rules and provisions of our act of distributions f except that our act makes no distinction between males and females, in the first instance. This difference depended on the right of primogeniture, which our act has abolished. Oo-parceuers sue. ceed to the estate by mere operation of law, and are as one heir. 3 Woodes. 113. Com. Dig. Parcener. A. 3. This is the operation of out act of distributions.' A distributary share of an intestate’s estate,is in nature of a vested legacy. It vests immediately on the intestate’s death. 3 P. Wins. 49. Where the plaintiff claims as devisee of a term, he must prove the assent of the executor'; but not go, if he claims as devisee of a freehold estate. 1 Str. 70. The' consent of all the parceners, to bring suit, was not necessary. The . widow, in the present case, upon the death of her husband,intestate, became entitled to a third part of his real' estate. The right to this third part vested in her,- instantly, at his death. She was entitled to possess the whole, land along with the other co-heirs,till partition, in ,co-parcehary. For co-parceners are seized per trtie and per tout, deriving by one and the same title, and are as one heir. Runhingt.-Ejectm. 16,94. 2 Wils. 333.
    The plaintiffs, McFadden, and wife, being kept out- from the pos«session and enjoyment of land to which they claim title, at least to an undivided part of it, were certainly entitled to a remedy of-some sort, in some shape, Let us enquire then what was the appropriate remedy which- they ought to have pursued, and whether or not,the form of action, which they have adopted and pursued,- under the circumstances of the case, was not sufficient and good in law,to warrant a verdict in their favor, upon the evidence adduced. “ Parceners, by the common law, might sue to recover possession of lands descended in co-parcenary.” 2 Woodes. 170,- “ In all actions, real ancestrel, where the right descends from the' same person, all the joint owners ought to join.” Co. Litt. 164. a. This doctrine of joinder in action, however, might be found extremely inconvenient in this country, and no good purpose could be answered by it. If one parcener should sell her part, that part would be severed and turned into a tenancy in common. So if one parcener should disseize another. 2 Wooddes. 118. If after a joint action was brought, one parcener should convey his part, this would abate the suit. So if he disseized his companion. This would jsalio the legal 1'emedy of a party, desirous of recovering a right, depend upon the favor or caprice of his co-proprietor. It is true, by the law of England, that where a co-parcener sues in the names of all the joint owners, parceners, if the others neglect or refuse to proceed, they may be summoned and severed. But .this doctrine of summons and severance is liable to many cogent objections. Besides, it would not prevent the other inconveniences above stated. - It was a principle of feudal law, that the fee should be represented, and held by only one feudatory, or tenant. Hence the origin of the right of primogeniture. In default of a male heir, the fee descended to all the females in equal degree ; but they were rogarded as only one heir: and this might be the feudal reason why it was necessary they should all join in an action touching their estate. But even after severance, if one of two or more parceners died, the writ abated. Bac. Abr. Joint-Tenant, Ki This was another inconvenience, resulting from this dostrine of joinder, without any necessity in reason or common justice, save what had relation to some feudal principle, to warrant the doctrine. But no great mischief or inconvenieuce would result, if each parcener were allowed to prosecute his action singly. If suits were multiplied, the plaintiffs might be compelled to consolidate them, where it would be proper to do so. It may be alleged, that if one parcener were permitted to sue for, and recover the whole, land, the recovery might operate to the prejudice of his co-parceners. But this cannot be the case. The action of trespass, to try titles, comes in lieu of the old action of ejectment, and must follow the nature of that action. It also combines the action of trespass for the mesne profits. It is. a principle of law, relative to actions of ejectment, that the action is possessory, and for the purpose of regaining possession-only, although in trying the right of possession, the right of property is generally involved. But the object is the possession, and this draws in question the title, by which the possession is claimed ; for possession must be recovered by some title, by which it must be supported and vindicated. Whatever the title js, the possession which is recovered by virtue of that title, must be according to such title. The possession, and the title must unite. 1 Burr. 90, 326. Esp. Dig. 434. Runningt. 16. When a man has a title .to an estate, and comes into possession of it, by lawful means, he shall be in possession according to his title. 1 Burr, ut supra. In ejectment, the plaintiff always recovers ac. cording to what his title really is. Bull. N. P. 106. Esp. Dig. 447. The verdict in this case might have been so expressed as to shew the nature and circumstances of the plaintiff’*? title.j Buf, in any event, the recovery could not affect the other parceners, so as t0 Wol'b them any injury ; but might benefit them, inasmuch as the recovery df one parcener would enure tp the benefit of the others, since being seized per mie at per tout, the possession of one would i,e the possession of all. 3 Bac. Abr. 206. 1 Salk. 285. Running. 16. But even admitting the doctrine in its fullest extent here, as respects parceners joining m actions concerning their joint estate, as it prevails in England, yet the objection taken at the trial in this case, cannot be supported by such doctrine ; for it is clearly settled by the English authorities, that where one parcener sues alone, the tenant or defendant must take advantage of it by a plea in abatement. Co. Litt. 164. a. Com. Dig. Abatement. É. 8. 9. Com. Dig. Parcener. A. 5. Cowp. 219. 1 Salk. 4, 290. Bac. Abr. Joint-Tenant. K. Cro. Eliz. 554. It was not so pleaded in this case.
    In cases founded on contract, where the contract is made with two or more jointly, and one only sues, the action cannot be maintained, because it appears to be a different contract from that stated in the declaration, and the variance in such case is fatal; nor is it necessary to plead in abatement. But where the action is trespass, or founded on tort, it is otherwise. This distinction is now clearly settled. In the latter case, the objection must be made by plea in abatement. 1 Salk. 290. 2 Str. 820. 4 Bac. Abr. 661. Esp. Dig. 117. Bull. N. P. 34, If one of several part owners of a chattel; sue alone, the defendant can only take advantage of the objection by a plea in abatement. 6 T. R. 766. But it is contended, that the declaration ought to have stated truly and particularly, the nature and extent of the plaintiffs’ title, and how much of the land they claim; for that the evidence ought to correspond with the allegations set forth in the plaintiffs’ decíaration : and that from the declaration, it appears that the plaintiffs demand the whole land mentioned in the declaration, whereas, the evidence, produced by them, shews that they are entitled to only an undivided part. This has been answered already. It ought to have been pleaded in abatement. But the declaration in an action ofSrospass to try titles, never states the title of the plaintiff; although it is usual in actions of ejectment. In ejectment, it is done by laying a demise, that is, by stating a lease to the nominal lessee. This, however, is always a feigned and fictitious demise, or lease, which is thus stated, and which the defendant is not at liberty to «otrovert. It is a rule of law in actions of ejectment, that the í’sclaration must be according to the plaintiff’s title, and set it out ?.s it is, and shew a good and sufficient subsisting title in the plaintiff, at the time of the action brought. Esp. Dig. 444. But sup. pose the present action had been ejectment, and;the plaintiffs had declared upon a demise of the whole land, yet according to authorities in the English books, they might recover the whole : for they .are seized severally and jointly, of the whole ; though a moiety only would pass by the demise. 1 Esp. Dig. 458. Bull. N. P. 107. 1 Wils. 1. It being impossible .to fix on any particular part, which belongs to one more than another, the demise ought to be of the whole. Litt. sqc. 289, 3 Bac. Abr. 208. - But the plaintiff is not bound to set forth exactly the precise quality of his title or estate, any more than the exact quantity of the land he claims, in an action of ejectment. It,is only necessary that the thing, for which the verdict is given, should be comprised in, and be part of, the thing demanded by the declaration. Thus, if the plaintiff declares for one thousand acres, and proves a title to fifty, he shall recover fro tanto. Bull. N. P. 109. So if he declares for a longer term than he has a right to recover, yet he shall recover according to what his title really is. Esp. Dig. 447. The true question is, who has the possessory right, lb.
    
    In ejectment for a .moiety of gavelkind lands, on a supposition that the plaintiff and another were the only heirs of the person from whom the lands in question descended, and as such, entitled thereto, in moieties, it appeared, on the trial, that there was another co-heir, equally entitled to the same lands. The verdict was-taken for the plaintiff, for one third part of the premises, subject to the opinion of the court of king’s bench, upon this point; whether the plaintiff, on a declaration for a moiety, can recover a third part of the premises declared for. The determination of the court of king’s bench, was in favor of the recovery. And it seems to be settled, that in ejectment, whether the action be brought for an undivided, or a several and divided part; for the whole, or for a part; for an entirety, or a moiety ; the plaintiff shall recover according to the title he makes out, if it be comprised iu the declaration : and the verdict need not agree precisely with the declaration. Burges v. Purvis, et al. 1 Burr. 326. So in an ejectment under a joint demise of the whole, an undivided moiety may be recovered. 1 Esp. Rep. 360.
    It was further contended by the counsel for the plaintiff, that as the plaintiff had not consented to suffer a nonsuit, the court could not order it. The court might advise it; an.d in case the advice is rejected, may charge the jury to find for the defendant : and if [he jury fw¿¡ for the plaintiff contrary to the direction of the court, a new trial may be granted, in case such direction should be found correct.
    ^ nonsu^ *s whon the plaintiff is called upon by the court, and does not appear. Boote’s Suit at Law, 165. Co. Litt. 138. % T. R. 275. And none but the defendant can demand the plaintiff. 2 Sir. 267. If the plaintiff chooses to abide the chance ®f a verdict against him, he may do so, and refuse to suffer a non. .suit. 2 Bay, 126. I Wash. 89. The court may advise the plaintiff and direct the jury, but neither are bound by the advice or di, rection, Ih. The slat. 13 Car. 2, ch. 2. B. L. 76, authorises the .court to enter judgment as in case of nonsuit, for want of a declation, <&c:; but if the plaintiff declares, appears, and will answer when called, he cannot be nonsuited. See 1 Sellon, 463. 2 Bl, Rep. 1031. 2 Tidd’s Prac. 788. 1 T. R. 176, 2 T, R, 277. ■1 Salk. 660. 2 Bay, 126- Doug. 162.
    The arguments of the counsel for the defendant, Went chiefly .upon the ground, that the defendant was not obliged to plead, that there were other joint owners, or parceners, in abatement, but might take advantage thereof at the trial. And it was much insisted on, that it would he very unreasonable to require of them to plead a fact which they might not know, and not permit them to lake advantage of the disclosure of that fact by the plaintiff, upon the trial. But they further contended, that the plaintiff if he does not claim all the land, he goes for in his declaration, or does not claim it as absolute and complete proprietor, ought to state, in his declaration, what estate he does claim, and what interest he has, and the nature of the title by which he claims possession.
   The judges took time to consider this case ; and afterwards, at Columbia, in November, 1802, delivered their opinions, as fob lows:

Grbike, and Bay, Justices,

were of opinion that the nonsuit was properly ordered, and that the defendant was1 not obliged to plead the objection taken upon the trial, in abatement, because he might-not have known the facts on which the objection was raised before the trial.

Waties, and Trezevant, Justices,

being of a different opinion, the court was, at first, divided, till Johnson, and Brevard, Justi. ces, agreed to deliver their opinion, which they at first declined doing, Johnson, J., having granted the nonsuit in the district court, and Brevard, J., having been of counsel in the cause, for the plain,, tiffs, and brought up the motion to this court; and they both decided In favor of the motion. Johnson, J., doubted, at first, but at length concurred entirely with the majority of the court, that the objection ought to have been taken by plea in abatement, and could not be táken advantage of otherwise. ‘

Falconer, and Branding, for plaintiffs. M‘Grady, for defendant

The judges who argued in support of the motion on the first ground, which was the only ground upon which the case was determined, considered the estate of the plaintiff in the nature of an estate in parcenary, except Tkezevant, J. ; who inclined to think it might be better compared to a gavelkind estate, and cited Co. Lift. 176. a. note on sec. 265, of Littleton : and he was of opinion that each joint owner, or co-heir, might maintain a separate action for the whole lands before partition, as gavelkind tenants are seized per mie and per tout, which he thought co-parceners are not; and to support his opinion, on this point, cited 2 Lev. 113. 3 Lev. 354. 1 Esp. Dig. 285, 247, 370. 2 Str. 1146. 5 Rep. 18. b. Bull. N. P. 332. Parceners are entitled to occupy and enjoy the land, promiscuously, till partition ; and a recovery of pos. session by one against a stranger, must enure to the advantage of all, as the possession of one is the possession of all. Where one- parcener sues, Without joining his companions, advantage may be taken thereof by plea in abatement, but not otherwise. The following authorities were referred to in addition to those pro. duced by the plaintiffs’ counsel. 1 Ric. Prac. 198. Carth. 61, 63, 5 Burr. 2613. 1 Ric. Prac. 204. 2 Imp. Prac. 52.

Motion granted.  