Hinson v. . Shugart

WiNBORNE, J. The theory upon which the plaintiffs presented the case, and upon which it was tried in Superior Court, as is disclosed by the record and case on appeal, is that no permission was given by either Hinson or Garrison to defendant to make the changes in the structure of the porch to the Estelle Summersill house, as required by the terms of the lease. No evidence appears to have been offered, and no contention appears to have been made that Hinson was without authority to act for the lessors of the property, Hinson and Garrison, who owned it as co-tenants. But, if such contention had been made, there is sufficient evidence on which to base a presumption that Hinson had authority to act for his cotenant Garrison as well as for himself. Therefore, decision on the first issue was made to rest upon the question as to whether Hinson gave permission to defendant. There is evidence in behalf of plaintiffs that he did not give such permission. And there is evidence in behalf of defendant that he did give such permission. Thus a clear-cut issue of fact in that respect was presented to the jury and the jury has answered in favor of defendant. It is a well settled principle in this State that the theory upon which a case is tried in Superior Court must prevail in considering the appeal and in interpreting the record and in determining the validity of exceptions. Simons v. Lebrun, 219 N. C., 42, 12 S. E. (2d), 644, and cases cited. See also cases in N. C. Digest, Vol. 2, Appeal and Error, 171 (1). Hence, the first question of law raised on this appeal, that is, whether one tenant in common may bind his cotenant with respect to common property, was not mooted on the hearing and does not arise on the record. But assuming that it does, it may not be amiss to say that while under ordinary circumstances a tenant in common in dealing with third parties may not bind his cotenant by any act with relation to the common property not previously authorized or subsequently ratified, acts by one tenant with relation to the common interest are presumed to have been done by authority and for the benefit of his cotenant, if there be any circumstances upon which to base such presumption. Moreover, it will not be presumed that a tenant in common entered into an agreement with relation to the common property without the consent of his cotenant. 62 *211 C. J., 533 and 535. Subject Tenancy in Common, sections 209, 210. Cf. Hudson v. Cozart, 179 N. C., 247, 102 S. E., 278. In tbe light of these principles there appears in the record these evi-dentiary facts: Both Hinson and Garrison reside at Lincolnton, N. C., in the western part of the State. Together they purchased the property in Jacksonville, N. C., in the eastern part of the State. A few days thereafter they acted together in negotiating the lease, and in leasing it to defendant. They acted together in agreeing in the lease that upon permission from them as “parties of the first part” defendant at his own expense might make changes in the building leased to him by them. And Hinson made the trip to Jacksonville in connection with the property. This indicates a close association and unity of action between Hinson and Garrison as regards this property, and shows Hinson looking after it. From this it may be presumed that Hinson was acting with authority of Garrison. The next question is that the court failed to charge the law relating to authority of one tenant in common to bind his cotenant. The record fails to show that such instruction was requested, and the question was not presented on the trial. Hence, failure to charge on the subject will not be held for error. See Simons v. Lebrun, supra, and other citations above to which reference is made. The third and last question is whether plaintiffs were entitled to a directed verdict upon all the evidence. The record fails to show a request for peremptory instruction for verdict in favor of plaintiffs and no exception in this respect appears to have been taken on the trial. Hence, the question may not be considered. And, in any event, under the law as applied to the evidence, such instruction would not have been correct. After careful consideration we fail to find cause for disturbing verdict of the jury. No error.