Opinion
(Fall Riding, 1801.)
1. In ejectment, on a disclaimer, the lessor of the plaintiff make take out execution for the part disclaimed.
2. If ejectment be brought for a moiety, a third may be recovered.
EJECTMENT. Defendant disclaimed part, having been permitted to plead after a judgment by default set aside, and having entered a disclaimer last term after plaintiff had left court. Stanly moved for a writ of possession, and that the defendant might pay costs.
When there is a disclaimer entered, the plaintiff may take out a writ of possession, of course; as to the part defended for and not disclaimed, you may proceed to try. Also, if you sue for a moiety, you may recover a third; or if for two moieties under different devises, you may recover two-thirds.
NOTE. — Upon the second point, see Bowden v. Evans, post, 222; Hatch v. Thompson, 14 N.C. 411; Huggins v. Ketchum, 20 N.C. 414. On the several demise of one tenant in common, the plaintiff in ejectment may recover his term in the undivided share of that tenant, but the lessor of the plaintiff must, at his peril, take out a writ of possession only for the land to which he has title. Godfrey v. Cartwright, 15 N.C. 487. See, also, Bronson v. Paynter, 20 N.C. 393.
Cited: Graybeal v. Powers, 83 N.C. 563.