#### DEN ON DEMISE OF ANN PIERCE vs. ANTHONY A. WANETT.

When the real plaintiff in ejectment is a tenant in common, though he may declare for the whole, he has not an absolute right to have a verdict for the whole, but the jury may render such a verdict, leaving the plaintiff to ' take possession at his peril. The more correct course, however, is, when the extent of the title can be seen with reasonable certainty, to set forth in the verdict the undivided share, to which the title appeared, and to enter the judgment accordingly.

Upon the probate of a deed for land by husband and wife, the wife residing in another State, a commission to take the private examination of the wife may issue from the Court of the County, where the land lies under the Act of 1751. In the Revised Statutes, by a misprint, the word “country,” in the Act of 1751, is changed to the word ‘‘county,” but, from the context, the construction of the Revised Statute must be the same as that of the Act of 1751.

In order to be allowed to introduce in evidence the deed of a married wo. man, the following facts were proved : “that upon the record of New Hanover County Court, at August Term 1818, there was an entry in these words: Ordered that John McCall and David Jones be appointed to take the private examination of Sarah Pierce, wife of Peter, touching her free execution of a deed executed by them to Samuel Potter, dated July 21st,

‘ 1818. On the 10th of August the clerk issued a commission to the said McCall and Jones, as residents of New Hanover, to lake the privy exam- . ination of the feme, reciting that the deed had been proved in the Comity , -Court, and that it had been represented to the Court, that the said Sarah could not travel, $c., and upon it the commissioners on the same day returned the private examination,” and then follows an entry on the com- • mission, that the execution of the deed was proved by McCall, who and Jones are the subscribing witnesses : upon which it was registered Held, that this was not sufficient proof of the execution of the deed by the wife.

The cases of Burgess v. Wilson, 2 Dev. 306, Godfrey v. Cartwright, 4 Dev. 487, and Lenoir v. South, 9 Ire. 237, cited and approved.

Appeal from the Superior Court of Law of New Hanover Comity, at the Fall Term 1849, his Honor Judge Dick presiding.

*447This is an ejectment for a lot in Wilmington, which Abraham Golden purchased in 1813 in fee, and of which he died seized, in 1815. and without issue. The action Was commenced in April 1845, and the demise is laid on the 1st of January, 1S40, for ten years and is for the whole lot.

The lessor of the plaintiff claimed by descent from Golden, as the daughter, and only surviving child of Sarah Fleming, who was a daughter of a sister of Golden. As a declaration by Golden ot the state of his family, the plaintiff gave in evidence his will, made in 1808 ; wherein he gave parts of his estate to his sister Nancy Garret and her husband James Garret, and to his two nieces Sarah Fleming and Ann Fleming, and to Abraham Golden, son of his brother William, and the other children of his said brother, and to the children of his brother James, and the residue of his estate to his wife Rachel for her life. The plaintiff also examined one Peter Pierce as a witness, who deposed that the said Sarah and Ann were the daughters of a sister of said Golden and resided in Maryland ; and that, in August 1816, the said Sarah and the witness intermarried there, while she was an infant, and that they always resided thereuntil the death of said Sarah, which happened in 1835. The witness further deposed, that he and the said Sarah had issue three children, of whom one died in the lifetime of the said Sarah, and the other two survived her ; that one of them was named William Henry, who was born in March 1820 and died before this suit was brought; and the other was Ann the lessor of the plaintiff, who was born November 15th 1823, and has never been in this State. The witness further deposed, that neither the said Sarah nor he was in possession of,any land in this State during their intermarriage; and also that Ann, the aunt of the lessor of the plaintiff, married one William Pierce, while she was an infant, .and, they *448are both still living in Maryland : and also that James Garret and his wife Ann died in or before 1832, without issue.

The plaintiff further gave evidence, that the defendant was in possession of the lot and had been ever since 1828 ; but he gave no direct evidence that any person was in possession after the death of Golden, until the defendant entered.

The defendant then gave in evidence a deed from James Garret and his wife for the premises in fee to Samuel Potter, dated October 27th, 1847 ; also a deed from the witness, Peter Pierce, and his wife Sarah, to the said Potter, dated July 21st, 1818. The latter deed recites, that the bargainors believed they were entitled to part of the reversion of the real estate of Abraham Golden, deceased, after the death of said Golden’s widow, then the wife of said Potter, and that, without admitting the 'same to be true, the said Potter, in order to save law suits, was willing to pay a certain sum of money to the .said Pierce and wife ; and, then in consideration of $100 paid, it purports to grant, and bargain, and sell to Potter and his heirs all the right, title, and interest in the real estates in North Carolina, which those persons derived from the said Golden. As to the probate of this deed, the fob lowing facts are stated. U.pon the record of New Plan-over County Court, at August Sessions 1818, is an entry in these words : “Ordered that John McColl and David ■Jones be appointed to take the private examination of ■Sarah Pierce wife of Peter Pierce, touching her free exe•cution of a deed executed by them to Samuel Potter, 'dated July 21st, 1818.” On the 10th day of August 1818, ■the Clerk issued a commission to the said McColl and ■Jones, as residents of New Hanover, to take the privy examination of the feme, reciting that the deed had been ■proved in the County Court, and that it had been represented to the Court that the said Sarah could not travel, *449&c ; and upon it the commissioners on the same day returned the private examination, and then follows an entry on the commission, that the execution of the deed was proved by McColl, who and Jones are the subscribing witnesses ; upon which it was registered.

The execution of. the deed from Garret and wife was proved by a subscribing witness before the late Judge Seawell, who ordered it to he registered as the deed of Garret; and, reciting that Ann, the wife, resided in the State of Maryland, he also ordered the Clerk of New Hanover County Court to issue a commission to two or more fit persons in Maryland, to take her privy examination touching the execution of the deed by her. The commission was issued, and on it the privy examination was taken in the usual form and returned, and thereupon it was ordered to be registered.

The defendant further gave in evidence a deed for the premises from the said Potter to himself, dated Decembí r 4th, 1828 ; and also read a deposition of a witness living in Philadelphia, taken by the^^^^stating that a young man was admittedof that city and died in October 184 lj^&p^ave as hisJame, William Henry Pierce, and statea%hat he ^^||^tyiyland and of the age of 25 years. ^ ■ %

The plaintiff then gave Eur,thm’^&¥i^^%-mat the said Samuel Potter in 1815 adimn^tf^a on Üip^tate of Golden with the will annexed, lírtsfeíSíísajjgfr two years after-wards married his widow.

The Court instructed the jury, that the deeds from Garret and wife, and Pierce and wife, were both ineffectual to pass the title of the respective femes.

The counsel for the defendant then moved the Court to instruct the jury, that the deed from Peter Pierce conveyed the premises during his life, and, therefore, that the plaintiff could not recover in respect to the share of the lot, which was vested in his wife when that deed was *450made, But the Court declined to give the instruction as prayed ; and instructed the jury, that if the said Sarah was one of the heirs of the said Golden, and she and her husband were seized of her share of the premises at any time during the coverture, the husband became tenant by the curtesy, and the plaintiff could not recover in respect of that share, and that, if no person was in the adverse possession of the premises, the actúa! seisin was, by operation of law, constructively in the said Pierce and wife. But the Court further stated to the jury, that, if they should be of opinion, that the said Potter claimed the premises by virtue of his marriage with Golden’s widow and of the deed from Garret and wife, and thence infer that Potter was in the actual possession of the premises at the marriage of Pierce and wife, and thence up to the time the said deed was made by' the said Peter, then there would be no such seisin of the premises as would make him tenant by the curtesy, and the plaintiff ought to recover.

The counsel for the defendant also prayed for an instruction, that there was no evidence of the death of the sister of Golden, who was the grandmother of the lessor of the plaintiff; and therefore that the plaintiff could not recover. Thereupon the Court directed the jury, that, if the grandmother was still living, the plaintiff could not recover ; but stated further that there was evidence on which the jury might find, that she was dead before this suit brought, if it should satisfy them that such was the fact.

The counsel for the defendant also prayed the Court to instruct the jurv, that, as the lessor of the plaintiff was not entitled to the whole of the premises, but, at most, only to a share as tenant in common with others, the plaintiff ought not to recover more than in respect to such share. But the Court refused, and told the jury', that, if the plaintiff was entitled to recover at all, he was entitled to recover the whole lot, as the defendant failed to show. *451that he was a tenant in common with the lessor of the plaint iff

The jury found the defendant guilty as to the whole of the premises, and from the judgment accordingly he appealed.

Strange, for the plaintiff

cited the following authorities:

Roper on Hus. and Wife, 7. Doe v. Hutton, 3 Bos. & Pull. 643. Crabbs Law of real property, 1079. Co. Lit. 29. Sterling v. Penlington, 7 Yin. Abr. 150, plead. 11. Crabbs Law of real property, 2302 and 2316. Hatch v. Thompson, 3 Dev. 411. Branson v. Poynter, 4 Dev. & Bat. 393. Holdfast v. Shepherd, 6 Ire. 361. Green v. Branton, 1 Dev Eq. 500. Burgess al. v. Wilson, 2 Dev. 300. Barfield v. Combs, 4 Dev. 514. Fenner v. Jasper, 1 Dev. & Bat. 34. Lucas v. Cobb, 1 Dev. & Bat. 228. Sutton v. Sutton. 1 Dev. & Bat. 5S2. Gilchrist v. Buie, 1. Dev. & Bat. Eq. 346. Askew v. Daniel, 5 Ire. Eq. 321. Toes v. Sawyer, 4 Dev. & Bat. 51. Jones v. Lewis, 8 Ire. 70.

W. H. Haywood, for the defendant.

Ruffin, C. J.

Upon the plaintiff’s own evidence his lessor was, at the trial, a tenant in common with her aunt, Ann Pierce, and also, at the date of the demise, with her brother, William Henry, then living ; and therefore the Court holds it erroneous to say, that the plaintiff was entitled to recover the whole lot. It is true, that a general mode of declaring upon a demise of a tenant in common for the whole has been tolerated, and upon it a recovery for the share allowed. It has been also held not to be necessary, that, in such a case, the verdict should find the precise share, to which the lessor of the plaintiff was enti • tied ; butihat it may find the defendant guilty in general terms and then leave the parly to take possession at the *452risk,should he take more than belongs to him, of being answerable therefor to the action of the other party, and also liable to a summary order of the Court for restoration of possession. But it is not the absolute right of the plaintiff to have such a verdict. The jury may find according to the title ; and, when the extent of it can be seen with reasonable certainty, it is recommended as the more correct, and it isusual,toset forth in the verdict the undivided share, to which the title appeared, and to enter the judgment accordingly. Godfrey v. Cartwright, 4 Dev. 487. Arch Forms 380. Lenoir v. South, 9 Ire. 237. McArthur v. Porter, 6 Peters 205. By that method questions are settled at once, which might otherwise produce troublesome controversy in other forms. The propriety of that course is more particularly exhibited in an action by one of the tenants in common against another ; in which case it is clear, the plaintiff cannot he entitled toa verdict in such a form, as would enable him to take judgment and execution authorising him, on their face, to turn the co-tenant out of the whole. That was admitted at the bar to be proper in the case last supposed. But it was argued and it seems to have been the ground of the decision below, that it is otherwise, when the parties are not tenants in common, as was supposed to be the fact in this case. It was not,indeed, the fact, since, as will be presently mentioned, the defendant has the title of Mrs. Garret, at least. But if it wTere true, it could make no difference. For the question is not, what the tenant has a right to hold ; but it is, what part the plaintiff has a right to recover. Now, that is what the lessor of the plaintiff hada right to demise ; namely, the undivided share, and no more. For, although the demise laid is for the whole, the very point of the dispute is, whether the lessor could make such a demise, or, if not, for any and what part; and the recovery must be for the share the lessor might rightfully have demised. For, tenants in common have several titles, and *453therefore each of them had to bring his several assize against a disseisor, as he was obliged to count truly on his title, and the recovery of one could not be for more than he demanded or could legally demand. Hence, necessarily, under the judgment, he entered into his share only and became seised with the disseisor. In like manner,,no more can be' rightfully recovered in ejectment, even against a wrong doer, than the share of the plaintiff’s lessor ; for, the demise of a tenant in common, whether in the form of a lease for the whole, or for a share, is really effectual for the share only, and, by a necessary consequence, the law cannot adjudge to a plaintiff more than the right, thus derived from the lessor, invests him with. The jury might, according to the modern practice, have omitted to find the quantum of interest of the lessor, which would have left that to be determined in proceedings consequent upon the plaintiff’s taking possession of too much — since that course seems to be established. But that will not entitle the plaintiff to call on the jury to go further than to say, he has some interest in the land, and, agreeably to the direction here, require them to find expressly, that the defendant was guilty as to the whole premises, when the lessor’s title, and, of course, his lease, is for less. For, against an affirmative verdict, that the plaintiff was entitled to the whole or to a certain part of the premises and a judgment accordingly, the Court would not be at liberty, in a summary way, to re-examine the title and control the execution of the writ of possession, or in an action for the mesne profits limit the amount of damages to the true interest of the lessor of the plaintiff, as was done in Holdfast v. Shepard, 9 Ire. 222.

Although the decision of the foregoing point disposes of the case in this Court, yet it is deemed proper to consider of the others, as most or all of them will probably arise on another trial. -

*454Then, in the next place, the Court holds, that the deed from Garret and wife was duly executed to pass her inheritance. The objection urged against it is, that the feme was a resident in Maryland, and her examination and acknowledgment were taken on a commission from the Court of this State ; whereas, it is alleged, a commission only goes when the woman is a resident of another “County” in this State, and the deed ought to have been acknowledged before a Judge in Maryland, or under a commission from some Court of record in that State. But the objection isinno part tenable. The act of 1751 directed a commission from the Court of the County in which the land lies, when the wife is a resident of any other “Country.” By a misprint the word is changed in the Revised Statutes of 1836 to “County.” But that cannot affect this case, because this proceeding was in 1817 under the act of 1751. But, if it had been after 1836, the Court would still hold the deed good; for the change from “Country” to “County” does not alter the sense of the act. In the next section the act retains the form of the commission given in 1751, and the words of it are, that the wife “is not an inhabitant of our said State.” Indeed, upon referring to the manuscript original intheSecre' tary’s office, the word appears to be “Country.” It is therefore clear, that, in respect to residence merely, the act does not intend to form a commission on its being in the same County in which the land lies or in a different County in this State; but that it is to go, only when the maker of the deed lives out of the State. The other branch of the objection, that, the deed ought to have been acknowledged before a judicial officer of Maryland, is also mistaken. The act of 1810, which authorises that course, is cumulative. It has never been supposed to supersede thatof 1751; but eithermethod has been practised, as it suited the convenience of parties. The act. of .183.6, *455indeed, preserves in it- both the act of 1751 and that of 1810 — thus clearly giving an election between them.

With respect to the deed from Pierce and wife, the facts do not appear with sufficient distinctness, to authorise the Court to form a satisfactory or positive opinion. But, as they are supposed to be, the Court would concur in holding it ineffectual as the deed of the wife, for want of a due acknowledgment and privy examination. The entry of record, appointing McColl and Jones to take the examination, does not state, that the deed had been then proved, and it cannot be collected from the certifícate of probate that it had been. The inference is rather to the contrary ; for, according to the copy set forth in the case, the certifícate of probate is on the commission, and therefore creates a presumption, that McColl proved the deed, when he returned the commission. If so, it would be wrong, as the act allows the commission to be ordered, only when the deed has been already executed and acknowledged by the husband or proved. But, Secondly, there was no order for a commission, and the act expressly requires such an order. Indeed, upon the face of the papers it would rather seem, that, wdth or without proof of the execution, McColl and Jones were, as members of the Court, appointed to take the privy examination of the woman, as being within the verge of the Court. If that be the fact, the proceeding is likewise wrong, because that can only be done, when the deed has been personally acknowledged in Court by the husband and wife; in which case, consequently, the wife is examined only, w-hethershe doth voluntarily assent thereto. It was held in Burgess v Wilson, 2 Dev. 306, that the two methods are substantially different, and that each must be observed in its appropriate case- Indeéd, the counsel here seemed to yield this point: and therefore the Gourt sufft poses the statement is not more precise,

*456But, supposing that deed not to be good as to the inheritance, there is still the question, whether the plaintiff can recover during the life of Peter Pierce, the husband. There lacks nothing to complete his title, as tenant by the curtesy, unless it be a seisin during the coverture. That person says, that neither he nor his wife ever had possession of the premises. But that must mean merely, that they did not in fact occupy, nor have perception of any profits; and he cannot be supposed to swear, that he was not in possession by operation of law. Upon that point we concur with his Honor, conceiving it to be perfectly settled in our law. that, when no other person holds, the possession is constructively in the owner. The husband and wife are in, as to all the world besides themselves, and there seems to be no reason, why they should not be so deemed as between themselves If the husband allow another person to be in possession, whereby the-wife’s estate may be prejudiced, he is justly excluded from the estate, which would enure to him if he had done his dut}>- by evicting the wrong doer. But when the land is wild, for example, the husband is not bound to improve it, nor go through the frivolous formality of once setting his foot on it, in order to acquire his estate hj' the curtesy. However it may be elsewhere, there have been so many cases in this State, in which the owner of land, not occupied by any other person, has been held to have the rights and remedies of an actual possessor, that it cannot be called in question now. Then had Pierce and wife such a possession during the marriage ? The contrary is suggested, only by reason that Potter claimed the land and had taken possession of it before the marriage. But he did not marry until two years after Golden’s death, that is, sometime in 1817, and Garret’s deed was made in October of that year; whereas Pierce was married in August 1816, and there was thus a clear interval of several months, in which it cannot be imagined that Potter *457had entered, and the possession was in Pierce and wife» But, as the Court conceives, there was no evidence on which it could be found, that Potter ever took possession in fact, or that, up to the time of his deed to the defendant» he had any other possession than the rightful one implied by law to be in him, as the owner of shares in the lot under his purchases. It may be conjectured, that he would exercise acts of ownership over the premises, if he lived near them. But there is nothing, which the law can deem evidence of it, proper to be left tó the jury. He derived no title to the premises through his wife ; for she. took no interest in them under the will and she did not dissent. And the law can never allow the presumption, that one took possession of land as a mere trespasser, upon a bare possibility, that be may have set up an un» founded claim to some interest in it and without any proof to the fact itself. It was taken for granted, that Mrs. Potter claimed the premises under the general disposition in the will of all the real estate for her life. But that is begging the question, and is contrary to both a natural and legal presumption ; for, as the premises were subsequently purchased by the testator and did not pass, by the will, the hypothesis, that the widow, nevertheless, claimed and took possession of them is entirely inadmissible, without evidence to the fact: of which the case-states none was given here as to any period prior to 1828. Indeed it does not appear, that there was a house or a fence on the lot, or that any person occupied it. The-Court therefore holds it to have been erroneous to submit the question of a possession by Potter to the jury, upon the evidence given

Supposing, however, that upon the next trial it should' appear, that Mrs. Golden claimed the premises for life and actually held them upon such claim from Golden’s death, then we should hold, that no estate arose to the husband, Pierce ; and the title of the lessor would depend *458on the sufficiency of her mother’s deed : of which all has been already said, which the statement before us will allow. If that should turn out to be insufficient, the lessor of the plaintiff will be entitled to one sixteenth of the premises, according to the statement of the family before us. For, Golden’s will shows that he left two brothers and their families, and a sister. Ann Garret, and another sister or her two daughters, one of whom was the mother of the lessor of the plaintiff Therefore the premises would be divisible, first, into four shares ; and, next, one of them would be again divided between Sarah and Ann Fleming, in case their mother was dead, and the lessor of the plaintiff would be entitled to one half of Sarah’s eighth, or one sixteenth. The other sixteenth may belong to her now, but it did not on the day of the demise, but was then vested in her brother, William Henry, who died in 1841. Upon the question, whether the grandmother of the lessor of the plaintiff was dead or living, there was evidence, and strong evidence to be left to the jury. The circumstances, that Golden does not notice her in his will, while he provides for her children ; that no account is given of her since 1808, although her son-in-law was examined on the trial, and that Potter purchased from one of her children ; all tend to raise a presumption of her death long ago. It is true his Honor stated inaccurately, that the plaintiff might recover, if she died before this suit was brought; for, to have that effect her death must have occurred before the defendant’s title was perfected by the statute of limitations. But the position was laid down in reference to the instruction prayed; which did not relate to the period of that person’s death, but insisted, on the contrary, that she was then living ; and, thus restricted, it was correct.

Per Curiam.

Judgment reversed and a venire de novo.