Opinion · Supreme Court of North Carolina

Anders v. . Meredith

Anders v. . Meredith, 20 N.C. 339 (N.C. 1838)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1838-06-05
Topic: litigation

(340) After the evidence had closed and the arguments of counsel commenced, the plaintiff's counsel moved to amend the declaration by adding a count for the trespass to the personal property in taking *Page 271 the loom and other articles. This motion was objected to by the opposite counsel and rejected by the court. It was insisted for the defendants that Meredith had made out a title in severalty; but that if he had failed in that, and was but a tenant in common with the plaintiff, he and the other defendants acting under his authority, had a right to enter, and that the plaintiff could not maintain this action. The plaintiff insisted that being a tenant in common and in possession he could maintain this action against a cotenant who entered in the manner proven. His Honor charged the jury that whether Meredith had the title to the land in severalty or only in common with the plaintiff, the latter could not recover in this action.

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Cited by: 1 opinion

ANDERSv. MEREDITH,20 N.C. 339(1839)

TIMOTHY ANDERS v. JAMES MEREDITH.

Supreme Court of North Carolina

June Term, 1838.

Suits Between Tenants in Common — Appeal.

1. One tenant in common may have an action on thecaseagainst his cotenant for any act done on the land amounting to waste or destruction, but he cannot in any event have an action of trespassquare clausumfregitagainst him, nor against any other person entering under his authority.

2. An order of the Superior Court, either allowing or rejecting a motion for an amendment, where the Court has the power to amend, is a matter of discretion, and cannot be appealed from.

THIS was an action oftrespass quare clausum fregit, tried at Bladen on the last circuit, before his Honor,Judge Pearson, upon the pleas ofthe general issueandliberum tenementum. The proof in the cause was that Meredith, one of the defendants, was either entitled to a fee in severalty in thelocus in quo;or he was entitled as tenant in common with the plaintiff and others. That he, and the other defendants under his direction, entered upon the land, and in the absence of the plaintiff broke open the door of a house and entered and took therefrom a loom and some other articles of personal property.

(340) After the evidence had closed and the arguments of counsel commenced, the plaintiff's counsel moved to amend the declaration by adding a count for the trespass to the personal property in takingPage 271the loom and other articles. This motion was objected to by the opposite counsel and rejected by the court.

It was insisted for the defendants that Meredith had made out a title in severalty; but that if he had failed in that, and was but a tenant in common with the plaintiff, he and the other defendants acting under his authority, had a right to enter, and that the plaintiff could not maintain this action. The plaintiff insisted that being a tenant in common and in possession he could maintain this action against a cotenant who entered in the manner proven.

His Honor charged the jury that whether Meredith had the title to the land in severalty or only in common with the plaintiff, the latter could not recover in this action. There was a verdict and judgment for the defendants, and the plaintiff appealed.

Strange for the plaintiff.No counsel appeared for the defendant in this Court.

DANIEL, J., after stating the case, proceeded:

We are of the opinion that the charge of the judge was correct. The possession of one tenant in common is the possession of the other; each has a right to enter upon the land and enjoy it jointly with the others. If one tenant in common destroys houses, trees, or does any act amounting to waste or destruction in woods or other such property, the other tenant may have an action on thecaseagainst him. But he never can, in any event, have an action of trespassquare clausum fregitagainst his co-tenant. Co. Lit., 200; 1 Thomas Co. Lit., 785; 1 Chitty's Gen. Prac., 271. The other defendants were not trespassers, as they entered and acted by the direction of Meredith.

The rejection by the court of the plaintiff's motion to amend the declaration was a matter in the discretion of the judge, and it is not a ground of appeal to this Court. It may be proper to remark that as no objections were taken at the trial to thesufficiencyof the (341) pleas, we understand thenoteof the plea ofliberum tenementum(afterwards to be drawn out in full) to mean that thelocus in quowas the freehold of Meredith, and that Causey entered with him and under his authority. We think the judgment must be affirmed.

PER CURIAM. Judgment affirmed.Cited: Bond v. Hilton,44 N.C. 309;S. v. Swepson,84 N.C. 828.Page 272