Opinion
(Fall Riding, 1802.)
1. If ejectment be brought for a certain fraction of a tract of land, a lesser fraction may be recovered.
2. It is sufficient evidence of the death of a party that he has been absent seven or eight years, and has not been heard of in that time.
PLAINTIFF claimed one undivided ninth part of the tract of land in question, and proved title to one-eighteenth part only.
Baker, for defendant, objected that he cannot recover a part only of that which he has claimed in his declaration; and relied upon Young v. Drew, S. c., 1 N.C. 162. MOORE, J., ante, 100.
If he is entitled to any part, he shall recover it; and the defendant must be found not guilty for the residue which he claims and has no title to.
It is sufficient evidence of the death of the ancestor of the lessor of the plaintiff that he has been absent seven or eight years, and has not been heard of in that time.
Verdict and judgment accordingly.
NOTE. — On the first point, see Squires v. Riggs, ante, 150, and the note thereto, and on the other point, see Anonymous, ante, 134; Lewis v. Mobley, 20 N.C. 323.