#### Jackson, *ex dem.*Jones and others, *against*Lyons.

Where a de-ejectment ffcnd”Sast0a tenant in com-on the ground that there has been no ouster co-tenants, ap-nlv to the Court, on affidavit, for leave to enter into the consent rule specially, Stmulatmg to con?esys ferae *andentry*only, not *ouster,*unless an actual ouster of the plaintiffs lessors should be proved

moiew^ná the consent rule for an undivided moiety was entered into, in the common form, and the olaintíff moved title to one undivided moiety only ; *Held,*that the defendant was entitled to judginent'as'to'the one moiety, though as to the Sther the plaintiff was entitled to judgment by da-'fault.

EJECTMENT for two messuages, &c. in the city of Schenectady, tried before Mr. Justice Platt, at the *Schenectady*circuit, in *August,*1819.

*399By the consent rule entered into by the defendant, it was ■stated to be “ for a certain piece or strip of ground lying along College-street, being two feet in breadth along *Union■*street, and nineteen feet in the rear; and also for oneundi-vided half part or moiety of a certain house and lot of ground, situate in the second ward of,” &c. At the trial, the lessors of the plaintiff admitted that they did not claim any part of the strip of land along *College-street;*and the witness stated that the defendant and his family occupied two rooms of the house in question on College-street, and that no other persons occupied any part of the premises. That *H. De Graff*died seised of the premises, (except the strip of land,) leaving four children, now living, two of whom married the *lessors, Jones Haight,*and, with their husbands, are the lessors of the plaintiff. The defendant insisted, that as the plaintiff did not claim the strip of land, and Had shown no title to one undivided tnoiety of the house and lot of ground, he could not, under the’consent rule, recover against the defendant, and ought to be nonsuited.

The judge directed a verdict to be taken for the plaintiff, subject to the opinion of the Court as to the true construction of the consent rule; and if the plaintiff was entitled *to*a verdict, then a judgment was. to be entered for him, otherwise the verdict was to be set aside and a judgment of non-suit entered.

*Huntington,*for the plaintiff.

He cited *Burr. Rep. 1895.*4 *Johns. Rep.*31. *Runington on Eject.*199. 2 *Taunt.*397.

*Lush,*contra.

Spencer, Ch. J.

delivered the opinion of the Court. There is no question as to the strip of ground : it is admitted to belong to the defendant.

The defendant entered into the consent rule, and defended, for an undivided moiety of the house, lot, &c. the plaintiff proved a title fo a moiety only ; and it is now insisted that he is entitled to judgment on the verdict.

I am of opinion that the defendant is entitled to judgment. He has succeeded in negativing the plaintiff’s right to one un*400divided moiety of the premises; and as to the other moiety, was entitled to judgment by default, there being no defence as to that. The case of *Languedyck*v. Burhans, (11 *Johns. Rep.*462.) is directly to this point.

It is probable that the defendant meant to defend as atenant in common, on the ground that there had been no ouster of the co-tenants. Had he applied, on an affidavit, stating that the lessors and the defendant were tenants in common, and that there had been no ouster, he would have been allowed to enter into the consent rule specially, stipulating to confess lease and entry, and also, ouster of the nominal plaintiff, in case an actual ouster of the plaintiff’s lessors shall be proved at the trial, but not otherwise. (2 *Taunt. Rep.*397.)

Judgment for the defendant.