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
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.
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.
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