Yancey v. . Greenlee

Síiith, C. J., after stating the case. There is no assignment of errors accompanying the record, and from an inspection, we can discover none. The appellant’s counsel suggests that the defence rests upon an alleged tenancy in common of the land, with the assent of one of whom the defendant occupies, and that an issue should have been framed to present that matter to the jury. The answer to this is obvious: I. The plaintiffs do not sue for the recovery of the adjoining *319 tract to which the defence applies, according to the defendant’s own statements, but land which, though it may be held by them in'Common with others, he sets up no claim, to hold in this suit. 2. The defendant denies the plaintiffs’ title to the land described in the complaint, and also his wrongful occupation of it. 3. The defence, if applicable to the land from which the plaintiffs seek to eject him, could have been made available under the second issue as to his wrongful holding, since his possession, under one of several tenants equally entitled to possess, could not be wrongful against another. 4. The findings of the jury negative the matters set up in opposition to the recovery, for by their verdict ho is declared to be in the adverse and wrongful possession of land to which the plaintiffs are entitled. If the land sued for belougs to the feme plaintiff and others in common, she has an undoubted right to expel an intruding trespasser and -regain or recover the possession, her right being full and-complete, although others have the same right. Even in the old form of ejectment, one or more of several tenants in common could make a demise enabling the lessee to recover, as the following cases show, against a usurper: Godfrey v. Cartwright, 4 Dev., 487; Bronson v. Paynter, 4 Dev. & Bat., 393; Holdfast v. Shepard, 6 Ired., 381; Pierce v. Wanett, 10 Ired., 446. It must be declared that there is no error, and, according to the well established rule, when none appears the judgment must bo affirmed. The motion to dismiss for want of an appeal undertaking comes too late after argument and cannot at this stage of the case be entertained under the rule, 89 N. C., 597, as construed in Hutchison v. Rumfelt, 82 N. C., 425. No error. ' Affirmed.