Hutchins's Lessee v. Erickson

³⁴³ A title in fee in all Isaac’s Chance, is found to be in Ralph Distance, also in his two daughters, Anne and Mary, as tenants in common. Anne conveyed to Edmund Kelly ; and William Kelly, his heir, is found to be tenant in common in fee of an undivided moiety of Isaac’s Chance. Mary married John Gilbert, and after his death, married Valentine Downey, who conveyed thirty acres, which was one-half and one-tenth of his undivided fifty acres, to Hut- chins, who entered. Hutchins then had title to only thirty acres, and therefore he could not demise more; but the declaration alleges a demise of the whole tract, which appears to be false, for Hutchins had only thirty acres, and the declaration ought to shew the truth.

The plaintiff should shew that Hutchins had a right to demise all Isaac’s Chance, and if Hutchins appears by verdict to have only a legal right to thirty acres, he could not demise the whole tract. The plaintiff should declare on such lease as would suit his title, and for him to support this ejectment, it ought to appear that he had a right to demise the whole of Isaac’s Chance. The plaintiff must shew in the lessor, such a title as is alleged ; that is, in quality of estate and not quantity. If a plaintiff is tenant in common, he can only recover his purparty pro indiviso, and be put in possession of no more. 12 Mod. 657.

Vin. Eject. 353. 1 Mod. 102. pi. 9. Joint-tenants, or tenants in common, may, according to their interests, join or sever in making leases, but the lease should be agreeable to their title. .What judgment can the plaintiff obtain ? Certainly not his term in the whole tract, when his title found is only for an undivided thirty acres; and he has already taken above that quantity, which he conveyed to Conner.

A tenant in common cannot pass a certain interest, nor can he demand any part in certain. The claim must be of an undivided part; therefore he could only make a lease of an undivided part. Plow. 424. Co. Lift. 197. 12 Mod. 302.

Salk. 391. He has no election. Dyer, 281. 2 Co. 36. Hob. 174.

There is one property common to both joint-tenants and tenants in common, viz. that their occupation is undivided, and neither knoweth his ³⁴⁴ part in severalty. 3 Bac. Abr. 188. Therefore the possession of the one is the possession of the other. Suppose there are two lessors, and you declare that they demised, you must shew in them a title to demise the whole, and if one should not have a legal interest in the whole, he could not in law demise the whole.

Gilb. Eject. 84. 2 Keb. 376. Suppose you declare on a lease made by A. and B. and it is proved at the trial that A. was tenant for life, with remainder to B. in fee, it could only be the lease of A. during his life. 6 Rep. 15. Poph. 57.

Or suppose the plaintiff declares on a lease made by A. and B, and on trial they are proved to be tenants in common, he must fail, because he ought to shew a title in each, to demise the whole, agreeably to his declaration ; and as they could have a title to a moiety only, so they could not each demise the whole. Suppose again that two tenants in common, join in