The demandant by his levy on his execution against Sarah Brister obtained only an estate during her life.
By R. S., 1857, c. 104, § 3, the demandant is required to “ set forth the estate he claims in the premises, whether in fee-simple, fee-tail, for life or for years ; and if for life, then whether for her own life or that of another,” &c. By § 8, if the demandant proves that he is entitled to such estate in the premises as he has alleged, and had a right of entry therein when he commenced his action, he shall recover the premises, unless the tenant proves a better title in himself.
In the declaration the demandant claims an estate in fee. His proof utterly fails to support it. The action cannot be sustained without an amendment. As none is asked for, the plaintiff must become nonsuit. Plaintiff nonsuit.
Kent, Dickerson, Barrows, Danfortii, Tapley, JJ., concurred.