Den ex dem Edmund S. Godfrey, et. al. v. Gideon Cartwright, 4 Dev. 487

Daniel, Judge. The Counsel for the plaintiff admits that he is not entitled to lands described in the declaration, by virtue of either or both of the attempted partitions of the lands mentioned in Die case; they are irregular and illegal. But as Isaac Guilford was entitled to the land in fee simple at the timeofhis death the same despended to his three children as heirs at law.

That Lydia one of the lessors of (he plaintiff is one of the heirs of' Guilford, and in that character liad a right to demise the lands described in the declaration, so as to enable the nominal plaintiff to recover his term in an undivided third of all the lands therein described. On a several demise of the whole tract of land, by one tenant in common, the plaintiff in ejectment may recover his term of such an undivided portion of it, as the lessor can prove title to on the trial.

The more correct way of proceeding is for the jury to find the defendant guilty of the trespass and ejectment in the undivided portion of the lands described in the declaration, which the lessor of the plaintiff proves title to on the trial, and then the judgment shall be rendered accordingly. (Jtrchb. Forms, 830, 38 L.) In the present case the jury have found a general verdict, and the nominal plaintiff must have judgment that he recover his term.

The lessors of the plaintiff, when possession shall be delivered to them under the execution,must at their peril take possession only of such lands as they are entitled to. We think the judgment must be affirmed. Pun CüRIAM.-JUDGMENT AEFXEMEB.