Den on Dem of Banner v. Carr , 33 N.C. 45 ( 1850 )

This was an action of ejectment. The declaration has but one count, which alleges that a joint and several demise was made on 11 April, 1845, by John Banner, Nathaniel Moody, John Martin and Fleming Priddy, to the plaintiff, for the term of ten years from them next ensuing, etc. Upon the trial it appeared that one of the lessors had no title. Whereupon his Honor intimated the opinion that the plaintiff could not recover, and a nonsuit was submitted to.

Hoyle v. Stowe, 13 N.C. 318, which is cited and approved in Bronson v.Paynter, 20 N.C. 527, is in point and fully sustains the opinion of his Honor. It is there held, if one of the lessors in a joint demise has no title, the plaintiff cannot recover, "for there is neither a joint right to convey the land nor a joint right to possess it or to let the possession."

The plaintiff alleges a joint title in his lessors. The (46) jury cannot separate the title and find for the plaintiff against his own allegation. So one who has no title would be let into possession with the other lessors.

The allegation, that the demise was made by the four lessors severally as well as jointly, does not obviate this objection, and makes the matter worse, for the pleading is faulty for uncertainty, which is ground for demurrer. A party must always set out his title, and when he claims a particular estate (one less than a fee simple) he must show when it began, how it is derived, and its limit or quantity of interest. As it is expressed in the books of pleading, "the commencement of every particular estate must be set out." Stephens Pleading, 306; Coke on Littleton, ch. 3, 3b.

This plaintiff derives his title under a lease from four lessors. It is left uncertain whether the lease was made by them jointly or severally. The inference is that it was made jointly, and, at the same time, severally. This, it seems to us, involves an absurdity. At all events, it is too uncertain to be allowed in good pleading.

It is said that the action of ejectment is a creature of the courts, contrived to effect the ends of justice. That is true, but it does not furnish a reason for allowing "this creature" to do violence to the rules of pleading.

PER CURIAM. Judgment affirmed.

Cited: Elliott v. Newbold, 51 N.C. 10.

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