31 N.C. 222 | N.C. | 1848
The action is trespass for mesne profits, brought in the name of the plaintiff in ejectment, after his lessors were put into possession under a habere facias possessionem from this Court in the case reported, 6 Ired., 361. The judgment was there given on the first count, which was on the demise of two (223) persons who were, with others, the heirs at law of Jeremiah M. King, from whom the land descended. The demise was of the whole of the premises and the verdict was a general one of guilty. The present action is brought at the instance of the two persons on whose demise the recovery in ejectment was made. On the trial the defendant moved the court to instruct the jury that they could find only such aliquot parts of the rent and damages as those two persons were entitled to, as some of the heirs of King. But the court refused to give the instruction prayed for, and directed the jury to assess the damages to the whole value of the profits from the day of the demise to that of the plaintiff's lessors going into possession. From a verdict and judgment accordingly the defendant appealed.
The Court thinks the law was not correctly laid down to the jury. It is certainly most proper and generally best answers the purposes of justice that the verdict should specially state the interests of the lessors of the plaintiff, when these are several, or when only some of the tenants in common bring the suit. But as the party may not be prepared always to show his particular share, and the defendant is guilty, if he hath ejected the plaintiff from any part of the land to which he was entitled under the lease, it has become a practice to render the verdict in a general form, even when the whole of the premises is demanded. The reason is that the Court deems the action fictitious to many purposes, and therefore keeps it under its control, and will, in a summary way, correct any abuses committed under color of such general demise and verdict. Hence, it has been commonly said in such cases that the lessors of the plaintiff take possession at their peril. Upon that ground it was that the judgment was affirmed in the suit (224) between these parties, as was then stated (Holdfast v.Shepard,
There was also a question made upon the statute of limitations; but the facts appear so imperfectly in the transcript sent here as not to be entirely understood, and therefore nothing can be said on it.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Lenoir v. South.
(226)