Winborne v. . Lumber Co. , 130 N.C. 32 ( 1902 )

One tenant in common can recover the entire tract against a third party, for each tenant is entitled to possession (33) of the whole, except against a cotenant. Yancey v. Greenlee,90 N.C. 317; Lafoon v. Shearin, 95 N.C. at page 393; Thames v. Jones,97 N.C. 121; Gilchrist v. Middleton, 107 N.C. at page 684 (which is full and explicit). When defendant is a cotenant, then only the plaintiff's interest is defined by the judgment. Foster v. Hackett, 112 N.C. 546. Here, the defendant being a stranger, the court erred in directing the jury to respond to the first issue, "Yes, one-fifth of the land," if they believed the evidence; whereas, the defendant had no right to have the amount of plaintiff's right to possession determined, for, as against defendant, the plaintiff was entitled to recover possession of the whole. The jury seems to have cured this error by simply answering the issue "Yes."

As to the damages for cutting the timber, the plaintiff was entitled to recover only one-fifth, since this judgment would not be a bar to an action by the other four tenants in common for their pro rata part of the damages. Otherwise as to the realty, which cannot be destroyed, and the possession of which by the plaintiff inures to the benefit of his cotenants, since his possession is their possession. The judgment should be modified by giving plaintiff judgment to recover the entire tract; and, as thus modified, it is

Affirmed.

Cited: Shelton v. Wilson, 131 N.C. 500; Rowe v. Lumber Co., 133 N.C. 445;Allred v. Smith, 135 N.C. 451.

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