#### DAVID J. SOUTHERLAND et al v. ROBERT D. JONES and wife.

In an action of waste, where the title of the plaintiff to the place wasted, is set forth as a devise of a remainder in fee, and the proof was, that he was entitled to a reversion in fee by descent, subject to a power of sale, it was Held that the variance was fatal.

This was an action of waste, tried before Heath, J., at the last Spring Term of Duplin Superior Court.

. The writ in this case was as follows t

“ State of North Carolina. To the sheriff of Duplin county —Greeting : You are hereby commanded to take the bodies of Robert D. Jones and Mary Jane Jones, his wife, if to be found in your bailiwick, tenants of the following described tract of land, situate in the county of Duplin, viz., beginning at, &c., (describing it by metes and bounds) and them safely keep, so that yon have them, &c., then and there to answer David J.. Southerland and his wife, Caroline, (and others, naming them) in whom the right of the aforesaid lands, of which the aforesaid Robert D. Jones and wife, Mary Jane, are tenants for life, by virtue of a certain devise to said Mary Jane, remainder in fee to the said Caroline, c%c., contained in the last will and testament of Thomas Sheppard, of a plea wherefore, seeing, that the said Robert D. Jones and wife-, Mary Jane, have committed waste of the aforesaid lands and tenements, *322the said David J. Southerland and wife, &c., shall not have judgment, as well for the damages for the said waste, so committed, as the recovery of the lands and tenements so wasted, according to the force and effect of the statute, wherein it is provided that in all cases of waste, an action shall lie at the instance of him, in whom the right is, against all persons committing the same, as well tenants for term of life, as tenants for term of years, as guardian. Witness, &c.” The declaration was in conformity with the writ.

The plaintiffs gave in evidence, the will of Thomas Sheppard, and claimed title to a remainder in fee, under it. The clause relied on, as constituting their title, is as follows : “My will and desire is, at the death of my wife, all my lands be sold, and the money arising from such sale, be divided among all my children now living.” The plaintiffs are the children and husbands of the female children mentioned in the above clause.

It was insisted that this evidence did not support the declaration, and it was objected to by defendants’ counsel, and a nonsuit moved for. The Court,- by consent of the parties, reserved the question of law, with the power of setting aside the verdict and entering a nonsuit, should the Court be against the plaintiffs on the point reserved. Under the further evidence and instruction of the Court, the jury assessed damages for waste done, in two several places, on said land, which are described in the verdict.

Afterwards, the Court being of opinion against the plaintiffs, set aside the verdict, and ordered .a nonsuit. From which plaintiffs appealed.

W. A. Wright, for plaintiffs.

London and Houston, for defendants.

Battle, J.

In one clause of his will, Thomas Sheppard devised the land, upon which the waste was alleged to have been committed, to his wife, for life, and in a subsequent clause he adds, “ My will is, at the death of my wife, all my land be sold, and the money arising from such sale, be divided among all *323my children now living.” The plaintiffs, who are the children and the husbands of some of the femes, claim, in their writ, that they are tenants in fee in remainder as devisees, under the clause of the will, above referred to. His Honor, in the Court below, was of a different opinion, and we agree with him, that the plaintiffs did not take by devise, but by descent. The land, itself, is not given to the plaintiffs, but, at the death of the devisor’s widow is directed to be sold, and the proceeds to be divided among his children. During the life of the widow, the land is clearly not disposed of by the will, but descends to the devisor’s heirs in fee, subject to the power, of sale at the widow’s death.

The question, then, remains whether the misdescription of the title of the plaintiffs, in the action of waste, is fatal to their right of recovery. Upon that question we concur with his Honor, as we find that his opinion is well sustained by authority.

The action of waste has become nearly obsolete, both in England and in this State, and is almost entirely superseded by the action on the case in the nature of waste. The reason of this is, that the latter form of action is much more convenient, and applicable to a much greater number of circumstances than the former, as is shown in the recent ease of Dupre v. Dupre, 4 Jones’ Rep. 387, and by the authorities therein referred to. The old writ of waste, may, however, still be used, as it is certainly in force in this State; Brown v. Blick, 3 Murph. Rep. 511; 1 Rev. Stat. ch. 119; Revised Code, ch. 116. When brought, it must be governed by the rules established for it in England, whence we obtained it.

In Serjeant "Williams’ note 2, to 2 Saund-. Rep. 235, it is distinctly stated that “ The declaration in waste must show how the .plaintiff is entitled to the inheritancein illustration of which, he gives several instances. If it be necessary to state the plaintiffs’ title correctly, it follows, that it must be proved as laid. In the present case, the title of the plaintiffs is set forth in their declaration, as a devise of a remainder in fee, while their proof shows it to be the descent of a *324reversion in fee, subj ect to a power of sale. The variance is fatal.

PbR CuRiAM. Judgment affirmed.