The Executors of Livingston against Tremper and others, heirs and devisees of J. W. Tremper, Deceased.
NEW-YORK,
May, 1814.
in an action of Executedb™y5 ^ugT”egS several deiendthem genmíiE of defendants per descent, ITjoincd-and app^reTthat one of thedeneither an heir T°rnlasheidf that being an tractu,Xthln~ EÓundTlhmv a>»y liability of all the defendants; and TL so,Telas nonsuite,<-
THIS was an action of debt on a bond for 200 pounds, (500 dollars,) dated 14th July, 1794, executed by J. W. Tremper, deceased, in his lifetime, to Margaret Livingston, the testatrix, in her lifetime. The declaration contained but one count, eharging the defendants as heirs and devisees generally, without showing how they were heirs and devisees. The defendants pleaded riens per descent, 8?e, on which the plaintiffs joined issue. The cause was tried at the Ulster circuit, m September, 1813, when a verdict was taken for the plaintiffs, by consent, subject to the opinion of the court on the following case:
J. W. Tremper, the obligor,
in October, 1794, died seised of a large real estate, leaving, as his heirs and representatives, WilHam Tremper, Catharine, the wife of Conrad E. Elmendorf, John Tremper, Elizabeth, the wife of S. H. Phillips, and Jacob I. Tremper, all of whom were defendants; and Ann, who married John Story, the other defendant, by whom she had a son named John. Ann afterwards died; and after her death her , „ , . son also died, before the commencement of this suit. Ann, before her intermarriage with John Story, had married John McGregor, by whom she had a son named John, now living; the father having died soon after he was born, and after the death of J. W. Tremper. John Story, the husband of Ann, and one of the defendants, before and after the death of Ann and her son, and before and since the commencement of this suit, possessed and occupied a part of the real estate of which the said John W. Tremper died seised, and received the rents, &c. for the same, by virtue of a conveyance thereof, made by the said Ann, in her lifetime, during her intermarriage with the defendant John Story, to Alexander Story, his brother, who, afterwards, before the commencement of this suit, conveyed the same to the said John Story ; but the plaintiffs were ignorant of such conveyance until the trial of the cause.
*102The defendants insisted that the plaintiffs ought to be non-suited, because they had not proved their allegation that the defendant, John Story, was an heir or devisee of J. W. Tremper.
The cause was submitted to the court without argument.
Per Curiam.
The declaration is against the defendants as heirs and devisees of Tremper generally, and the defendants have pleaded riens per descent. With respect to all the defendants, except John Story, it was proved that they were heirs or devisees ; but he neither inherited, nor took any thing by devise, from Tremper. His wife was a daughter of Tremper, but had, together with her husband, conveyed her proportion of his real estate to a third person, who afterwards conveyed it back to Story. It cannot be pretended that Story is either an heir or devisee of Tremper, and he cannot be charged as such. (2 Saund. 7. note 4.) The declaration is in the dehet and detinst. This action is, therefore, to be classed among those arising ex contractu; and, by the settled principles-of law, the plaintiffs were bound to prove a joint liability on the part of all the defendants ; and not having done so, they ought to have been non-suited. (1 Chitty's Pl. 31. note n.)
Judgment of nonsuit,