Summary
In Johnson v. Swain, 44 N.C. 335, such plea was allowed where plaintiff acquired possession after suit brought, and of course is allowable here, where the title passed out of the plaintiff by virtue (391) of the statute.
Summary of this case from Taylor v. GoochOpinion
June Term, 1853.
1. A plaintiff in ejectment, who pending the action takes possession of the premises, cannot further maintain it; but such fact must be alleged in some proper form, as by plea to that effect, "since the last continuance."
2. A tenant in common can bring ejectment, when there is an actual ouster.
THIS was an action in ejectment, tried at Fall Term, 1852, of WASHINGTON Superior Court. The plaintiff showed title in the right of feme lessor (she having intermarried with the other lessor), to one undivided moiety of the premises, as tenant in common with the defendant. The defendant offered to show that the lessors of the plaintiff, since the last term of the court, had entered upon, claiming one moiety of the premises, taken possession of, and had remained until the trial on a portion of the lands sued for, but less than one-half, and were excluded from the remainder by the possession of the defendant. His Honor, Judge Manly, rejected the evidence, for the reason that there was no plea on which it could be offered.
Heath for defendant.
W. N. H. Smith and H. A. Gilliam for plaintiff.
The jury returned a verdict for the plaintiff; whereupon the defendant's counsel moved for a new trial, upon the ground that there was error in the directions to the jury, and in refusing to admit the testimony offered by the defendant; which motion was refused. Judgment upon the verdict, and the defendant appealed to the Supreme Court.
Admitting it to be true, that a plaintiff in ejectment, who pending the action takes possession of the premises, cannot further maintain it, we fully concur with his Honor that the court can take notice of no fact unless it be alleged in some proper form, so that issue may be taken on it. Here there was no plea, and of course no issue to which the evidence offered was relevant.
But suppose there had been a plea "since the last continuance," the evidence offered would not have supported the allegation put in issue, for there was a part of the premises of which the defendant retained possession, and from which he "excluded the plaintiff," (336) consequently, as to that part the plaintiff still had a right to maintain his action. A tenant in common can bring ejectment, when there is an actual ouster.
PER CURIAM. Judgment affirmed. Cited: Moore v. Fuller, 47 N.C. 206; Thompson v. Redd, ibid., 413; Horton v. White, 84 N.C. 297; Davis v. Higgins, 91 N.C. 383; Woodley v. Hassell, 94 N.C. 162; Puffer v. Lucas, 101 N.C. 285; Aldridge v. Loftin, 104 N.C. 126; Taylor v. Gooch, 110 N.C. 390.