Opinion
(Decided 26 April, 1898.)
Action to Restrain Waste — Tenants in Common — Injunction.
1. The right to sue for waste includes the right to restrain its commission.
2. Under section 627 of The Code, providing that one tenant in common may maintain an action for waste against his cotenant or joint-tenant, tenants in common may maintain an action to restrain waste by their cotenant.
ACTION heard before Robinson, J., at July Term, 1897, of BURKE, on a motion to dissolve a restraining order theretofore issued by Greene, J. The motion was allowed, and plaintiffs appealed.
S. J. Ervin for plaintiffs.
A. C. Avery and R. C. Strong for defendants.
This is an action to restrain the defendants from committing waste on the land described in the pleadings. The plaintiffs claim as remaindermen in said property. The defendant claims as a tenant for life under a will, as the owner in fee of one forty-eighth interest by descent from one of the common ancestors. The court held that the defendant was a tenant in common with the plaintiffs to the extent of said interest by descent and could not be enjoined as prayed for by his cotenants, and dissolved the restraining order, from which plaintiffs appealed. Other questions relating to the law of waste and the rights of parties therein were discussed, but the holding of his Honor as above stated disposes of this appeal.
It is quite useless to enter into the field of learning on this (599) subject at common law in England, or as it was applied by our ancestors to the conditions which they found in this country. Those considerations evoked much learning and lead to many intricate and embarrassing distinctions. One of the settled rules was that one tenant in common could not sue his cotenant, except for partition, and our Legislature, feeling the practical difficulties at an early date, enacted that one tenant in common might maintain an action for waste against his cotenant or joint-tenant. Rev. Stat., ch. 119; Code, sec. 627. The right to sue for the waste included the right to restrain its commission. The same question upon a similar state of facts was presented in Hinson v. Hinson, 120 N.C. 400, and the right to sue was sustained. This conclusion allows the parties to try the case upon its merits if they so desire. His Honor's ruling was erroneous.
Error.