Opinion
Spring Term, 1799.
The plaintiff cannot declare in ejectment for a whole tract of land, and give evidence of title to, and recover, an undivided moiety.
In these ejectments, the plaintiff declared for the whole tract of land, and gave evidence of a title to an undivided moiety.
White, for the plaintiff, argued that he was not bound to declare for the exact quantity he had a right to recover; but that it was sufficient if he proved a title for the same or any less quantity than that stated in the declaration. He cited and relied upon the case of Gaskin v. Gaskin, Cowper, 657, as an instance of the recovery of two-thirds of the premises comprised in the declaration.
The plaintiff ought, in this case, to have declared for an undivided moiety of the whole tract; otherwise the action of ejectment will have the effect of a writ of partition; the sheriff cannot put the plaintiff in possession of the half he claims, not being stated to be an undivided half, unless he previously makes a division, and ascertains the moiety the plaintiff is to have. The case cited from Cowper does not resemble the present. That is where one tenant in common recovered against another.
Nonsuit.
NOTE. — These cases have been overruled. See Squires v. Riggs, 3 N.C. 150. and the cases referred to in the note.
(163)