Harrison v. Stevens — 12 Wend. 170

Majority

p. 170

Harrison & Dorrival vs. Stevens.

Headnote

In ejectment a plaintiff must, in his declaration, describe truly the premises claimed, but is not hound to set forth the nature of the estate, nor the quantity of the interest claimed by him; and it was accordingly held that a plaintiff was entitled to recover an undivided share, although in his declaration he claimed the whole of the premises.

This was an action of ejectment, tried at the Herkimer circuit in March, 1832, before the Hon. Nathan Williams, then one of the circuit judges.

The suit was brought for the recovery of 127 acres of land, described as being part of a lot known as “ upper lot number forty-seven,” in Jersey field patent, situate in the town of Russia, in the county of Herkimer. The declaration contained three counts: in the first of which the plaintiffs Harrison and Dorrival claimed the premises in fee simple; in the second, Harrison alone claimed the premises in fee simple, and in the third, Dorrival alone claimed in fee simple. Evidence of title was given as well on the part of the defendant, as on the part of the plaintiffs; and when the parties rested their proofs, the counsel for the defendant insisted that from the evidence produced, it was manifest that the defendant had title to an undivided portion of the premises, and consequently that, though it should be admitted that the plaintiffs had shown title to the residue of the premises, they were not entitled to recover, inasmuch as in the declaration they had claimed the whole lot, and had shown title to but part thereof. The judge decided that the plaintiffs were entitled to recover a portion of the premises claimed, although the jury were satisfied that the defendant had shown title to an undivided share of the premises. The jury found a verdict for the plaintiffs for 91-94ths

p. 171

of the premises described in the declaration, and as to the residue of the premises they found for the defendant. A motion was made by the defendant for a new trial. Various questions were discussed on the motion, and decided by the court) but the case is reported only in reference to the above decision made at the circuit.

L. Ford, for the defendant.

J. A. Spencer, for the plaintiff.

By the Court,

The judge, I think, was correct in deciding that the plaintiff might recover for an undivided part of the premises, although he claimed the whole in his declaration. The statute, 2 R. S. 304, § 9, declares that if the plaintiff claims an undivided share or interest in any premises, he shall state the same particularly in his declaration. But if he claims the whole of certain premises, and it turns out on the trial that the defendant owns a part, shall the plaintiff be nonsuited and be driven to another action to obtain what he is entitled to, merely because his declaration claims more than his precise right ? There surely would be no justice in such a course, unless the statute positively requires such a declaration. In my opinion the statute is complied with by claiming the whole ; the verdict will show the exact quantity recovered, and the regulations respecting the verdict, 2 R. S. 307, § 30, show that it need not be for the quantity described in the declaration. When there are several plaintiffs, and title be shown in one only, the verdict shall be in his favor, and for the defendant as against the other plaintiffs. If the suit be against several defendants, the verdict may be against one only. If the plaintiff recovers the whole premises claimed, the verdict shall be general; but if only a part is recovered, the verdict shall specify such part; and if the verdict be for an undivided share, such share shall be specified in the verdict. The estate also established on the trial shall be specified in the verdict. All these different verdicts may be rendered upon a general declaration. The plaintiff is not bound to state his title precisely as it may be proved; he

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must describe the premises truly, but I do not understand that he is obliged to describe truly the nature of his estate, nor the quantity of his interest. If he claims an undivided interest, he must so state it; but as I have before remarked, under a declaration claiming the whole, he is not prevented from recovering an undivided interest. He should not be so prevented, and this' case is an instance of the injustice of such a requirement.