Allen v. . Salinger

Avery, J. (after stating the facts). If the defendant had not denied in his answer that the plaintiff was the owner of the land in controversy, and thereby acknowledged that he had ousted plaintiff, his co-tenant, but had asked that the action be dismissed on the ground that he and the plaintiff were tenants in common, and the plaintiff ought to have given reasonable notice to be let into possession before issuing the summons, this action could not have been maintained. As it sufficiently appears from the record that Ezekiel Leary was the common source of title, and that there was evidence tending to show that plaintiff and defendant each traced his title through different heirs-at-law of Ezekiel to him, and were, therefore, tenants in common, the charge of the Court would have been erroneous if the answer had averred the co-tenancy and set up the want of notice. Page v. Branch, 97 N. C., 97, and cases there cited. But the defendant has denied the plaintiff’s title to the land, and gone so far as to deny that there was land filling the description in the complaint. It being admitted that the title was out of the State and in Ezekiel Leary, the principle enunciated by his Honor, as to the acquisition of title by possession, was correct, and applicable to the evidence. The defendant, by his pleadings, has averred that he holds adversely, and cannot now avail himself of a new defence which would be in harmony with the verdict. Withrow v. Biggerstaff, 82 N. C., 82. *18 The objection that the finding of the jury was not, in its terms, responsive to the first issue, is not, we think, tenable. Where the title, not the possession, is in issue in an action for possession, the verdict and judgment operate as an estoppel on the parties as to title. This Court has countenanced and approved the practice of defining, in the verdict, the extent of the plaintiff’s interest in the land in controversy, either by metes and bounds, or as an undivided fractional interest. The manifest justice and propriety of this practice grows out of the effect of the judgment in such actions. The jury found that the plaintiff was the owner of one undivided seventh, and, in view of the testimony, the finding can be fairly interpreted to mean one undivided seventh interest in the land in controversy. Withrow v. Biggerstaff, supra. But the judgment of the Court, that the plaintiff recover the whole of the land, was erroneous, and was doubtless signed by his Honor without adverting to its form. The judgment should have been rendered for the recovery of the land, with an order that the plaintiff be let into possession with defendant, as tenant in common, to the extent of his interest, and must be modified so as to conform to this view. A plaintiff, showing title only to an undivided interest, may have judgment, without qualification, for the whole, against one who has no title. But it appears from the record that the defendant did show evidence of title, derived from Ezekiel Leary, the admitted source of title,-and the form of the verdict was probably due to that testimony. But the plaintiff, who has proven title to one undivided seventh, must, if he would have judgment for the whole, have shown on trial that the same evidence of title or possession that established his own title, demonstrated the fact that others than defendant held, as co-tenants, the other interest, and this action would inure to their benefit. But the burden is always on plaintiff in such actions, and he must establish *19 his right clearly to the judgment demanded, just as he is required to show title, good against the world. Overcash v. Kitchie, 89 N. C., 384; Yancy v. Greenlee, 90 N. C., 317. A new trial will not be granted, and, with the modification mentioned, the judgment will be affirmed. Modified and affirmed.