McDonough & Co. v. Carter & Co.

Lumpkin, Justice. 1. In Whiddon et al. v. Williams Lumber Co., decided at the present term {ante, 700), this court held, that in order to maintain an action of trespass upon realty, brought to recover damages to the freehold, the plaintiff, if not in possession when the injury was committed, would have to-show that he was the true owner of the land by proving; [707] title in. himself; and that, in snch case, mere proof of former possession would not be sufficient to show title. The present case differs from that in the. essential particular that the trespass here complained of was committed while the plaintiffs were in possession. Under section 3015 of the code, the bare possession of land authorizes the occupant to recover damages from any person who wrongfully in any manner interferes with such possession. Consequently, in an action like the present, it is not incumbent upon the plaintiff to show a complete and perfect title, but he may rely upon his possession of the land under a claim of ownership, this being prima facie evidence of title in him. 2. The present action was brought by a partnership composed of two persons in its firm name. It appeared that one of the members claimed an undivided two thirds interest in the land, and the other the remaining undivided one third; and also, that they were jointly occupying and using the land in the prosecution of their partnership business. "We therefore are of the opinion that the action was maintainable in the partnership name. It was, in substance, an action brought by tenants in common for an injury done to them as such, and for which they had a joint right of action. 3. One ground of the motion for a new trial was based upon newly discovered evidence. It is evident that by the exercise of proper diligence this evidence could have been produced at the trial. In view of the entire case, it seems clear that the plaintiffs were entitled to recover, and we see no error in directing a verdict in their favor. Judgment affirmed.