Opinion of the Court, It has been settled in this State, that *694a our action of ejectment, a plaintiff may recover less than what he deceares for :
1. He may sue for a whole lot, and recover a less quantity of land.
2. He may declare for an estate in fee, and recover agaist a stranger, a term of years. See Ante, No. 5.
3. The question, in this case, is, whether he can declare for an interest in severalty, and recover the interest or share of a tenant in common, against his co-tenant, who has forcibly evicted him.
The Court are of opinion, that the plaintiff may declare for the whole in severelty, and the verdict may be returned for the plaintiff to recover such interest or share, as is conformable to his evidence. See 1 Burr. 326. Chapin v. Scott, Chipman’s Rep. 33.
In this case, the verdict was for the whole premises demanded ; but the Court will not grant a new trial, for it appears from the case, that on the trial, the defendants did not claim that the verdict should except any part of the land, ahd that the defendants did not furnish any evidence, by which the Jury could ascertain the quantity of interest, their proprietary share was entitled to : If they had been guilty of an actual ouster, the burden of proof lay on them, to shew their right, and the-amount of their interest.
The defendants did not request the Judge to instruct the Jury, on the subject of returning a verdict, for an undivided share, but only raised the questiqn, whether the plaintiff could recover at all, on this declaration,
Finally — The real question, in dispute, was, whether the lot iu question, had been severed to the right, either of the plaintiff, or of the defendants, and the Court see no reason why this question should be again litigated.
Motion dismissed, and Judgment rendered on verdict.