EXECUTORS OF HODGES against PARKER

No. 2. EXECUTORS OF HODGES against PARKER. Franklin, 1820. WHERE a plaintiff, in Ejectment, shews title to a proprietary right in the town where the land in question lies, and defendant, in his defence, shews, that after the com-¿genuew&itt of the action, he purchased under another proprietor, and re-deeded to him before trial, defendant a tthe trial is a stranger, and cannot contest the division. Plaintiff is entitled, to recover. THIS was an action of Ejectment, brought to recover possession of lot No. 16, containing 140 acres, in the town of Fairfield, tried at October adjourned term, 1819. Several questions were raised on the trial, but the question, decided at the law term, was as follows : The plantiff had shewn title, to a proprietary right, in the town of Fairfield, but there had been no legal division severing the lot in question to his right. The defendant then shewed, that Bradley Barlow was the ower of proprietary rights, in the town of Fairfield, before the commencement of this suit. He then read deeds from Bradley Barlow to himself, executed since the commencement of this action, to wit, one dated Jan. 7, 1817, conveying forty acres of the said lot, by metes and bounds, the other dated 1819, conveying the remaining one hundred acres : The plaintiff then offered a deed, which was admitted, dated September 1,1819, from Joseph Parker to Bradley Barlow, conveying the said hundred acres. Upon this evidence, the Judge charged the Jury, that the defendant was a stranger as it concerned the said hundred acres, and they must find a verdict for the plaintiff for the said hundred acres, he not being obliged tq shew a division against a stranger. Verdict for plaintiff to recover said hundred acres. Motion for new trial, founded on exceptions to the opinion of the Judge. In support of the motion ; for plaintiff, it was contended that during the pendency of this suit, Parker became a tenant in common with the plaintiff; here the plaintiff’s i’ight of action ended. Parker after thus becoming a tenant in common with plaintiff, gave no right to plaintiff to recover, by selling the land to Barlow or any other person, for a judgment against Parker is conclusive not against him alone ; but against any one to whom he had deeded, after the commencement of the suit. 2 Bacon 178. Contra. A plaintiff in an action of ejectment, having a yight to recover at the time of commencing his action, cannot be defeated by the defendant’s purchasing in a defence after the suit brought. 5 Johnson’s Rep. S3. 3 Term. Rep. 186. 4 East. S07. [MAJORITY — By the Court.] By the Court. The defendant being a stranger at the time of trial, and also, at the time of commencing the action, could not contest the division on the trial. After the evidence of the plaintiff, the burden lay on the defendant, to shew Ms right in the land, either at the time he was sued, or at the time of trial; his voluntarily parting with an interest purchased in the interim, cannot be a subject of complaint on his part. Purchasers under the plaintiff would be affected by the Judgment in the same manner as those under the defendant, yet as it is clear law that if the plaintiff parts with his title before trial he cannot recover. So the defendant parting with his interest in this case must have the same effect in his right in the suit. Motion dismissed and Judgment rendered on verdict.