Langendyck v. Burhans , 11 Johns. 461 ( 1814 )

Spencer, J.

delivered the opinion of the court. The defendant has misconceived his defence. If a tenant in common, who has not ousted his co-tenant, is sued in ejectment, all the cases agree that he may enter into the consent rule specially, when he does not dispute the title. (7 Mod. 39. 3 Burr. 1897.)

It is well settled, that where the appearance is for part, the plaintiff may sign judgment against the casual ejector for the residue. (2 Sellon, 104. 108.) Here the defendant defended only for the three fourths and one third of a fourth of the premises ; consequently, for two thirds of one fourth there was no defence, and the plaintiff had a right to take judgment therefor. Though I have not met with a precedent of the special consent rule entered into by a tenant in common, who admits the plaintiff’s right to a part, yet I am persuaded it should not stipulate to confess an ouster, with respect to those parts of the premises claimed, and of right belonging to the plaintiff. The consequence would be, that the plaintiff would be bound to prove an ouster, and failing in that, he would be nonsuited. (1 Campb. N. P. 173.)

It is perfectly well settled that a tenant in common is not bound to prove lease, entry, and ouster, if the consent rule confesses it; and in all cases, but that of an ejectment brought to avoid a fine, the confession of lease, entry, and ouster, is sufficient to bar a nonsuit for want of proof of ouster; (3 Burr. 1895.) and particularly in an ejectment by one tenant in common against another. (4 Johns. Rep. 312.)

The plaintiff has regularly taken a judgment by default against the casual ejector for the parts not defended, and, according to the decision of this court, in Baron v. Abeel, (3 Johns. Rep. 481.) no defence could be set up against the action for the mesne profits consequent on the judgment by default.

Judgment for the plaintiff.