Doe on demise of Whitehurst and wife, v. Banks.

~) { w ,, „ , ¡>í rom Beaufort.

Ejectment. — The declaration contained but one demise of the whole tract of land therein described; Plaintiffs proved title to an undivided third part only, as tenants in common with one Joseph White.

Defendant claimed the whole tract under a purchase made at a Sheriff’s sale by virtue of an execution, to *347Which Defendant was not a party, and on the trial produced in evidence tlie Sheriff’s deed, and the execution, but did not produce the judgment. It also appeared that to one ninth part of the tract, Plaintiffs had a title not derived through the person against whom the execution had issued.

The Judge charged that though Plaintiffs had declared for the whole, yet they might recover an undivided third part; and that the Defendant claiming under a Sheriff’s deed was bound to produce the judgment as well as the execution. Yerdict for Plaintiffs, new trial refused and appeal.