Godwin v. . Early

*12 MacRae, J. The special proceeding begun before the Clerk having been transferred to term for trial of issues raised by the pleadings, the Judge had jurisdiction of the same bj^ virtue of chapter 276, Laws 1887. It seems to be now settled by repeated adjudications that the petition is defective unless it sots forth that the petitioners are tenants in common and in possession — the general rule being that possession of one tenant in common is possession of all— where there has been no actual ouster. Alsbrook v. Reid, 89 N. C., 151; Wood v. Sugg, 91 N. C., 93; Osborne v. Mull, ibid., 203; McGill v. Buie, 106 N. C., 242. We think, however, that the failure to allege possession did not deprive the Clerk or the Judge of jurisdiction; it simply constituted a defective statement of a cause of action. Garrett v. Trotter, 65 N. C., 430. Of the proceeding for partition the Clerk had jurisdiction, and, by virtue of the statute above, this jurisdiction was transferred to the J udge. When his Honor then denied the motion for leave to amend the petition in this respect, upon the ground of want of power to grant it, there was error. The reasoning is the same as that upon section 908 of The Code, concerning amendment of process or other proceeding begun before a Justice of the Peace. To apply it to the case before us wo may use the language of Mkkri-MON, J., in Singer Manufacturing Co. v. Barrett, 95 N. C., 36 : “The Superior Court cannot create and supply its jurisdiction, but it can amend a process or pleading to make the jurisdiction appear properly when in fact it did exist but did not so appear — thus rendering effectual a large and important class of judicial proceedings that otherwise would very frequently entirely fail, to the injury of individuals and the prejudice of the public.” Reversed.