Jackson ex dem. Jones v. Lyons

18 Johns. 398

• Court: New York Supreme Court
• Decided: October 15, 1820
• Status: Published

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. There is no question as to the strip of ground : it is admitted to belong to the defendant.

The defendant entered into the consent rule, and defended, for an undivided moiety of the house, lot, &c. the plaintiff proved a title fo a moiety only ; and it is now insisted that he is entitled to judgment on the verdict.

I am of opinion that the defendant is entitled to judgment. He has succeeded in negativing the plaintiff’s right to one undivided moiety of the premises; and as to the other moiety, was entitled to judgment by default, there being no defence as to that. The case of Languedyck v. Burhans, (11 Johns. Rep. 462.) is directly to this point.

It is probable that the defendant meant to defend as atenant in common, on the ground that there had been no ouster of the co-tenants. Had he applied, on an affidavit, stating that the lessors and the defendant were tenants in common, and that there had been no ouster, he would have been allowed to enter into the consent rule specially, stipulating to confess lease and entry, and also, ouster of the nominal plaintiff, in case an actual ouster of the plaintiff’s lessors shall be proved at the trial, but not otherwise. (2 Taunt. Rep. 397.)

Judgment for the defendant.