Thompson v. Silverthorne.

CoNNOR, J. Plaintiff sued for possession of certain logs described in his complaint. After the testimony was in, counsel stated to the Oourt that he would contend that he had by his testimony proven that the person under whom plaintiff claimed and defendant were tenants in common of the land from which the logs were cut and also tenants in common of the logs in controversy; that defendant took them by force from his possession. His Honor intimated that if plaintiff established such state of facts he would instruct the jury that he was not entitled to recover1; whereupon plaintiff excepted, and submitted to a judgment of nonsuit and appealed. The sole question presented upon the appeal is whether hi's Honor was correct in the instruction which he proposed to give the jury. Plaintiff concedes the well-established principle that one tenant in common, or joint owner of personal property, cannot maintain an action against the other tenant or owner to recover the exclusive possession of the property. Grim v. Wicker, 80 N. C., 343; Strauss v. Crawford, 89 N. C., 149. He calls attention to1 the exceptions tp the general rule, and contends that he brings himself within one of them, for that defendant forcibly took the logs from his possession, and he is entitled to be restored to his original status. Mr. Justice Ashe in Grim v. Wicker, supra, thus states the exceptions to *14 tbe general principle: “Tbe only exceptions to this principle are when tbe property is destroyed, carried beyond tbe limits of tbe State, or wben, being of a perishable nature, sucb a disposition of it is made as to prevent tbe other from recovering it,” citing Lucas v. Wasson, 14 N. C., 398, in which it is said: “It is not sufficient to show that defendant took forcible possession of tbe chattel and carried it away.” Tbe principle was applied in Shearin v. Riggsbee, 97 N. C., 216. We do not think tbe language used by tbe Court in that case conflicts with tbe authorities cited. Tbe right of tbe plaintiff upon tbe facts relied upon was to have partition. If, pending tbe proceeding for that purpose, tbe defendant threatened tbe destruction or removal of tbe property, tire Court would, upon application, have enjoined him, or, if necessary, apjDointed a receiver. We concur with tbe ruling of bis Honor. Tbe judgment of tbe nonsuit must be Affirmed.