#### Willie McPherson, *et al. v.*Joseph Seguine.

Tenants in common cannot maintain trespass ag-ainst each other ; eye», 9-fter they have made a partition'by parol.

Trespass q,uare ciausum ere git, originally, commenced by the plaintiff, McPherson, and one *Samuel Proc-. lor ;■*but upon the death of the latter, .revived by Ms heirs at lawn

Upon *liberum tenementnm*pleaded by the defendant; the cause was tried at' Cates, on the-last circuit, before his Honor Judge Mártir, when the plaintiffs produced

1st.' A grant to one *John*Fontaine, for 6000 acres of' land.

2d. A deed from one *Morris*to the plaintiff) *McPherson,*dated in 1818, calling for 1500 acres, a part of a tract of 6000 acres; granted to *Fontaine,*lying in the Dismal Swamp, halt without stating any beginning, or any particular lines.

*1543d. A deed from *McPherson*to *Sawyer*and *Proctor %*and they proved tliat *Sawyer*died, leaving an only daughter, who married *Proctor*and had issue.

The defendant claimed an undivided part of the 6000' acres granted to *John Fontaine,*and deduced Ms title as follows :

1st. By proving *Fontaine’s,*death, and the descent to his sons, *William, John*and *Patrick.*

2d. A deed from *Patrick*to *John Cowper,*for 1500 acres of the 6000 acre tract.

3d. A partition of *John Cowper’s*estate among his children, and an assignment thereby of the 1500 acres ofthe original grant to *Fontaine,*to *Willis Cowper,*one ofthe. sons of *John Cowper.*

4th. A deed from *Willis Cowper*to the defendant for 1580 acres of land, “ part of a large tract granted to *John Fontaine,*being the part allotted, laid off and divided to *Patrick Fontaine*and *Charles Fontaine,*heirs of *John Fontaine*deceased, by the County Court of Gates, at August term, 1803, and being the lands purchased by *John Cowper*from said *Patrick*and *Charles.”*

The plaintiff then proved a partition by parol made between the parties to this suit in 1819, before its commencement.

Upon the case thus appearing, his Honor nonsuited the plaintiff, who appealed.

*Kinney,*for the plaintiff.

*Iredell,*for the defendant.

IturiTN, Judge

The deed, under which the plaintiffs, claim, conveys only an undivided share of the 6000 acres patented by *Fontaine.*The defendant’s is also an undivided interest in that tract. The deed to him does not in itself describe any boundaries. It says, it is true, that the land thereby conveyed is part of a large tract, patented by a certain *John Fontaine,*and contains fifteen hundred and eighty acres, *“*being the part allotted, laid off and divided to *Patrick Fontaine*and *Charles Fontaine,*heirs of *John Fontaine,*deceased, by the County Court of Gates at August term, 1803, and being the land purcha*155sed by *John Cowper*from said *Patrick*and *Charles*But no such partition is produced, as that referred to in the deed ; nor is tlie deed to *John Cowper*produced. So that it is impossible to say, that the deed covers any particular part of the 6000 acres, but only the shares of *Patrick*and *Charles Fontaine,*whatever they may be.

The caso of *An-ders*v. *Anders, (ame 1 ml.*529) approved.

Upon the death of the plaintiff in *trespass quare clausum*fregit, the suit must be revived by his executor, & not by his heir.

The case states further, that upon the death of *John Cowper,*his estate was divided amongst his heirs at law, and the interest in the *Foniaineptdmi*was thereby assigned to *Willis Cowper,*the vendor of the defendant. But that does not carry us a step further towards the several titles or possessions of the parties to this suit; because it does not ¡seem, that there was any partition between the *Cowpers,*and the other claimants of the *Fontaine*patent, or that any particular specified portion of that was allotted to the *Cowpers,*or to *Willis Cowper.*It only amounts to this : that the interest of *John*Cowper in that patent, whatever it might be, whether in common or in severalty, should be taken as the share of *Willis*of the estate of *John.*

The parties then are tenants in common, and one cannot maintain trespass against the other. The attempt to make a partition *in pais*in 1819, was nugatory, *(Anders*v. *Anders. 2d vol.*529.)

Besides, there are other objections which it would be difficult for the plaintiffs to get over. Among them I may mention, that upon the death of *Proctor,*one of the original plaintiffs, his *heirs*are made parties to revive instead of his executor.

Per Curiam — Judgment aeeirmed.