#### Den ex dem. of Winston J. McRee et. al. *v.*Fen & Phineas Alexander.

From Mecklenburg.

The saving clause of ths Act of *1715,*c. 2, presevves'tfic right of one of several co-heirs who is within the práríso, alihon|;h the other co-heirs aiv under no disability, and although they are barred_ Therefore in ejectment by three. co-h< irs, upon a j :n?t di-mise, two of whom were fr< e from disability, but the .other under covuture, judgment may be rendered .igamstthe lMa'ntiff upon the titles of those under no disability, anclSn his favor upon tnc title of tiie *feme covert.*

Ejectment on the joint demise of *Winston*.7. *Mc-liee, David ,M. AlcJiee, Isaac S. Henderson*and *Lucinda*his wife, and on the trial beibie Strange, Judge, the jury returned the following fact-, specially ; thal *Winston J. JtcRee, David*M. *McRec*and *Lucinda Henderson,*were the he,irs at law of *David Mcllce,*woo died intestate» seised of the premises in tin* declaration meniioned ; that the lessors of the PlaiuiiST were tenants in common of the land, and that no partition thereof ever had been made 5 that Ihe Defendant obtained a grant for the same land, ousted the lessors of the Plaintiff, and kept possession for more than seven years before the commencement of the present action — that at ihe, lime of the ouster, *Winston*and *David M. Mcllee,*were under no disability, but that *Lucinda Henderson*was, and still is covert of *Isaac S. Henderson,*one of the lessors of the Plaintiff. Upon this verdict, his honor gave judgment for Ihe Defendant, from which the lessors of the Plaintiff appealed.

The case, was submitted without argument, Wilson, for the lessors of the Plaintiff. No Counsel appeared for.the Defendant.

Tayior, Chief Justice.

The lessors of the Plaintiff are tenants in common, claiming as heirs ?o *McRee.*Two of them were under no disabiliiy when their right of CO-*322try accrued — one was under the twofold disability of infancy and coveriure. More than se.ven years have elapsed since lb" right of entry accrued, and the question open on (his record is, Wncther the right of entry of ail, or any of them, is taken away by the act of 1715, c. 2. By ihe 3d section of that, act, it. is incumbent on the lessors of the Plaintiff to show, that they had a right of entry when tne action was brought. No person or persons shall enter or make claim, but within seven years next alter his, her or iheir right or title descend or am we; and in default thereof, such person so not entering, or making drfaull, shall be utterly excluded or disabled from any entry or claim thereafter to be made, 3d section. The 4th section provides, that if any person or persons that is, or hereafter shall be, entitled to any right or ciwitu of tends, tenements or hereditaments, shall be, at the nme Ihe said right or title first descended, accrued, come or fallen, within the age of twenty one years, *feme covert,*&c. that then such person or persons shall and may, notwithstanding the said seven years he expired, commence, his, ner or their suit, make his, her or their entry, as he, «lie or *they might hme done before*this act, so as such person or persons shall, within three years next after full age, discoverturr, &c. Each individual lessor might in this case have brought an ejectment to recover his own share, without the necessity of joining the other who was under disability ; *for*as tenants in common, they hold by several titles, or by one titie. and sevenal 1 íghis ; and so itneriy was this notion actid on, that untti a late decision in this Court, it was held, that tenants in-common could not make a joint demist. Bu: <¿s tee (ease is a mere fic tion, arid file action liberally construed, so that the possession which is recovered emires to each lessor acoordsng to his tille, such efft.-: •honk'! he given' to the demise as the law warrants, otherwise ihe substance will be sacrificed to the form.

*323Even in the case of coparceners, who constitute but one heir, one may on her sole demise recover her own share *•,*and so of the sole dsmisé of a joint tenant, to the Plaintiff in Ejectment, for that severs the jbhit tenancy, and entitles to a recovery for the lessor’>• proportion. *(Den ex dem. of Bowyer*v. *Judge,*11 *East. 287. J*So where an estate descended to two" coparceners, one of whom was under a disability, and the other did not enter within the period prescribed by the statute, no doubt was suggested of the right of. the one who was under disability, to recover. The-only doubt was, whether the disability of one, did not preserve the right of theother. There were in that case, it is true, two counts, one upon a joint demise by the two coparceners, the other upon the sole demise of the one under disability, upon which latter one the judgment was entered up $ but that was a mere form unconnected with the justice of the case. *(Langdon*v. *Rowlston,*2 *Taunt.*441.)

As the only plea in this case is the genera! issue, it is incumbent on the claimants in the first instance, to establish their right to the possession ; whatever operates as a bar to (hat right, must apply distributively to each j and judgment rendered for those whose rights are preserved.

The construction of the 9th section of the same act, bars the remedy of all the Plaintiffs who necessairly join in the action, although some are under disability ; for it is competent for those who are under no disability, as well as their duty, to take care of the rights of those who were unable to protect themselves ; and for the other reason stated by the Court in *Reden*v. *Frion,*(3 *Murph.*577,) that the'grammatical construction of the words enforced such .construction, since the words “person or persons” in the proviso, meant where there is a single Plaintiff, he must be under a disability, in order to come within the exception *;*or where there are several Plainr *324tiffs, they must all be under disability. For these reasons’ * think judgment should bo entered up for one-third part of the land, the share of the/eme *covert.*

Henderson, Judge.

In a joint action brought by several, where the Defendant avails himself of the bar given to such action, by the statute of limitations,all the Plaintiffs must bring themselves within some of the savings of the statute, otherwise the bar is not avoided, *(Reden*v. *Frion, 3 Mur. 577.)*The decisions on- this point are uniform, as far as I know, and I shall not now enquire whether they are founded on the technical reason, that the action being joint, all or none of the Plaintiffs, must recover, otherwise the judgment does not pursue the writ and declaration, or whether on the very words of the statute. But 1 must say that the result is disgraceful to our system of jurisprudence, as it sacrifices the spirit of the proviso either to technical absurdity, or to literal construction. But neither of these reasons can be brought to bear in this case. The action of ejectment *eo nomine,*is not witiiin the statute of limitations. It is true, that the statute bars an entry, and that this action cannot be brought'but by one who has the right of entry. Tiie law however, does not require a joint entry to be made; each may- enter according to his estate or right. Where many have a joint right of entry, and one enters, his entry enures for tiie benefit of all; if there is a joint title, and some have lost, and some have not lost their right of entry, he who enters does it for the benefit of those whose entry is congeable. It follows, tiiat if all have lost tiie right of entry but the one who enters, he7 enters solely for his own benefit, and becomes tenant in common with those who have acquired an estate in the land, by possession or otherwise. But if after his entry, those who have lost their right of entry, recover their estates in a higher action, he becomes joint tenant, a coparcener, or tenant in common with them, according to tiie nature of their estates.

*325In this case, there is nothing in the statute, which prevents the *feme covert,*one of the lessors of the Plaintiff, from *entering;*and if her brothers her coheirs, had not lost their right of entry, she entered for their benefit also, and they became by our law, tenants in common. If they bad lost their right of entry, she entered for her own benefit, and became tenant in common with the Defendant, who had acquired an estate by possession, for tenants in common may hold their estates by different, titles. The one may be wrongful, and liable to be defeated, the other rightful, and indefeasible.

But if the Plaintiff is driven from all other grounds, there is one on which she may rest her case. This action is not brought by several Plaintiffs ; it is brought by *John Ben*the lessee. He derives title, it is true, from three; but *they*are not the *Plaintiffs,*and if his lease from *them,*or *any*of them, is good, it is sufficient. If there was a real lease, and the lessee had been evicted, and had brought bis ejectment, which is the appropriate remedy for the eviction of a termor, it would.be no objection to his title that he claimed from three different persons. If the title of one of them was good for the whole, he would recover the whole. If the title of one was good for a part, and that of the others bad for the whole, he would recover that part. The lessor of the Plaintiff does not los,e by the fiction of the lease *\*and the question on the trial is, could the lessors, or any of them, make a valid lease ; that is, liad they, or any of them, a right of entry to the whole or to any part; and if to apart, what part. In the case of a real lease, the lessee might set up a title under any number of different lessors, from whom he actually claimed the estate, however adverse their claims, might be. But in the case of a fictitious lease, as that is proceeding by leave, and under* the sanction of the Court, demises from many persons, claiming differently, tvould not be permitted, because it would make the case too complicated for fair and easy investigation. But in *326a real lease, where the party actually sets up title from many different persons, however complicated and various their titles may be, I do not perceive how the Court could interiore and confine him to any one or more of those titles *;*he must be permitted, if he can, to show it from any source.

I therefore think that the Judge erred, in saying that there should be judgment for the Defendant, and that all the lessors of the Plaintiff were barred of an entry, unless all were within some of the savings of the statute.

Per Curiam. — Judgment reversed.