Sheltman's Lessee v. Coulter

1 Del. Cas. 408

• Court: Supreme Court of Delaware
• Decided: October 15, 1796
• Status: Published

Opinion

Per Curiam.

There may be some doubt as to the question stated, and the Court will not therefore nonsuit the plaintiff, especially as the defendant may demur if he think the point tenable.

The defendant’s counsel then proceeded to argue the point before the jury. They argued that the declaration should be according to plaintiff’s right. That the right was joint and different from the case of tenants in common. That in all actions real and mixed joint tenants ought to join, 1 Com.Dig., Title “Abatement” 89. So also in “Trespass,” ibid. Joint tenants should join in a demise, cditer as to tenants in common. 2 Bac. Abr. 175.

Bidgely and Bayard for plaintiff. Wilson and Miller for defendant.

Upon the other side, it was contended that the demise was at least good for a moiety. That though it was stated in the books that a joint demise by tenants in common was not good, yet was it nowhere adjudged that a joint tenant might not recover his moiety upon a demise of the whole. There are many cases in which it is laid down that the plaintiff may recover a smaller interest than mentioned in a demise, 9 Vin. 330 pi. 6, 346 pi. 29, 351 pi. 4.

A point of law has been relied on by the defendant’s counsel in the defense upon which the opinion of the Court is required. The Court are bound to give their opinion, and, considering the merits of the case with the plaintiff, it is with reluctance they declare their opinion that the demise in the declaration is not according to the plaintiff’s title at the time when it is laid. Therefore that he cannot recover.

Notwithstanding the opinion of the Court, the jury gave a verdict in favor of the plaintiff for the whole premises.

There was a rule to show cause why the verdict should not be set aside, but it was never argued. Quare the opinion of the Court [stood].