Opinion
October, 1796.
Ridgely and Bayard for plaintiff. Wilson and Miller for defendant.
Ejectment for thirty-five acres of land, parcel of a tract called "Red Oak." The demise was 3rd January, 1794.
The plaintiff deduced a title to himself and his brother William as joint tenants, and then showed a release of William dated 12th March, 1794.
Upon the evidence being gone through the counsel for the defendant moved for a nonsuit on the ground that the release was subsequent to the demise. And at the time of the demise, plaintiff being a joint tenant with his brother William, ejectment cannot be maintained without William being joined in the action.
There may be some doubt as to the question stated, and the Court will not therefore nonsuit the plaintiff, especially as the defendant may demur if he think the point tenable.
The defendant's counsel then proceeded to argue the point before the jury. They argued that the declaration should be according to plaintiff's right. That the right was joint and different from the case of tenants in common. That in all actions real and mixed joint tenants ought to join, 1 Com.Dig., Title "Abatement" 89. So also in "Trespass," ibid. Joint tenants should join in a demise, aliter as to tenants in common. 2 Bac.Abr. 175.
Upon the other side, it was contended that the demise was at least good for a moiety. That though it was stated in the books that a joint demise by tenants in common was not good, yet was it nowhere adjudged that a joint tenant might not recover his moiety upon a demise of the whole. There are many cases in which it is laid down that the plaintiff may recover a smaller interest than mentioned in a demise, 9 Vin. 330 pl. 6, 346 pl. 29, 351 pl. 4.
PER CURIAM.
A point of law has been relied on by the defendant's counsel in the defense upon which the opinion of the Court is required. The Court are bound to give their opinion, and, considering the merits of the case with the plaintiff, it is with reluctance they declare their opinion that the demise in the declaration is not according to the plaintiff's title at the time when it is laid. Therefore that he cannot recover.
Notwithstanding the opinion of the Court, the jury gave a verdict in favor of the plaintiff for the whole premises.
There was a rule to show cause why the verdict should not be set aside, but it was never argued. Quare the opinion of the Court [stood].