101 S.E. 263 | N.C. | 1919
The complaint of plaintiffs sets forts two causes of action:
First. One asserting ownership and the right to possession, which was wrongfully withheld by defendant.
Second. That they were the owners in fee of the land, and defendants were in possession wrongfully, claiming title, and asking that the said false claim be removed as a cloud upon the true title held by them. At the close of the testimony on adverse intimation from the court as to plaintiff's right to recover on either cause of action, plaintiffs suffered a nonsuit and appealed.
There was evidence on the part of plaintiff tending to show that plaintiffs are the children and heirs at law of Mary Jane Loven, deceased, and that the father of plaintiffs, G. A. Loven, was alive at the institution of the suit, and was not a party thereto, neither as plaintiff nor defendant. That Mary Jane Loven was the only child and heir at law of John Webb, deceased, who had a grant from the State covering the land in controversy, thus showing the title in reversion to the land in plaintiffs. That defendants were in possession of the land, wrongfully asserting title to the same in themselves and adverse to that of plaintiffs. From these facts, making in favor of plaintiff's claim, and which must be taken as true on a judgment of nonsuit, it appears that at the time of action instituted G. A. Loven, father of plaintiffs, and not a party, was entitled as tenant by the curtesy to a life estate, and the right of present possession of the land, and as to this first cause of action plaintiffs have been properly nonsuited. Blount v. Johnson,
We see no reason, however, why, on the facts presented, the plaintiffs as owners of the inheritance cannot maintain the second cause of action, that to remove a cloud upon their title.
Our statute controlling in actions of this character (Pell's Revisal, sec. 1589) is very comprehensive in its terms and purport, and clearly applies to the facts presented in the present instance. Speaking to the question, in Satterthwaite v. Gallagher,
It is fully understood that the owners of an estate in remainder or reversion may resort to appropriate actions to protect their interests. Even in cases of trespass such actions may be maintained when the injury has caused permanent damage affecting the value of the inheritance, and with or without the presence of the life tenant. Such a suit was upheld in a decision at the last term, of Balsom v. Johnston,
We are of opinion, therefore, that as to the second cause of action there is error, and this will be certified that the order of nonsuit be set aside, and the action proceeded with in accordance with law.
Error.
Cited: Narron v. Musgrave,
(584)