Property · MBE-tested
Jackson, ex. dem. Loomis, against John Stiles, White, tenant
2 Cow. 585·New York Supreme Court·1824·NY
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Opinion
Jackson, ex. dem. Loomis, against John Stiles, White, tenant.
To entMe tJlB tenant to enter into a special consent rule in an action of ejectment, as a tenant in common, he must, at least, swear that he claims as tenant in common.
That he believes the action will involve a question between tenants in common, is not enough.
K. B. Davis, moved for leave that the tenant enter into a special consent rule. He read an affidavit of the tenant thus: “that, as he, this deponent, verily believes, this ejectmen involve a question, between tenants in common.”
[MAJORITY — Savage, Ch. J. Savage, Ch. J.]
Savage, Ch. J.
He should swear that he is a tenant m common.
Davis. It is a question of law, whether he is so or not. He can do no more than state his belief.
Savage, Ch. J.
He can take the advice of counsel. At least, he must swear that he claims as a tenant in common. That he believes the ejectment will involve a question between tenants in common is not enough.
J. A. Collier, opposed the motion. He cited Jackson v. Lyons, (18 John. 398.)
Motion denied.