29 Ga. 298 | Ga. | 1859
By the Court.
delivering the opinion.
We concur with the Court below, that there is no equity in this bill, but our view of the rights of the parties is very ■different from that expressed by Judge Cabaniss. Whether the estate given by the will of Josee Dunn, to his son David, was a fee simple, or only life estate, with remainder to his heirs at law, and in the latter case whether the heirs at law are only the widow, or are the widow together with the rest of kin, are questions which were strenuously argued before us, but which both sides at last besought us not to decide, if a decision of them could be avoided.
If the estate conveyed, was a life estate to David, with» remainder to his heirs at law, and the widow is sole heir, then the bill fails for the'reason assigned by Judge Cabaniss, that is to say the complainants simply have no interest in the matter. But suppose the heirs at law to be the widow, together with the complainants, who are the next of kin. This was decidedly the favorite hypothesis of the complainants. If it be the true one what need have they for the bill? — they, who are defendants in the trover case, and C’ox, who is plaintiff, are joint tenants of the negro. What need has one joint tenant for an injunction to restrain his co-tenant from recovering the property from him ? His defence at law is good, and he needs no more. But it maybe suggested that although, as a general rule, one joint tenant can not maintain trover against his co-tenant; yet he may do so when, as in this case, the tenant in possession sets up his own adverse claim to the whole, to the exclusion of his co-tenant. This also is true; but in such a case the recovery is founded on a partition. Neither joint tenant is entitled to recover from the other, under any circumstances, the entire property jointly owned, but only the value of his own interest in it. Such a case results in a partition of the joint property — the whole property which is held by the same joint title. They may, if they choose, remain joint tenants, but either has the right to a severance. This is a severance of the whole, and not of a part. Now the bill alleges in this case, that Cox, the plaintiff in trover, has in his possession, to the exclusion of his joint tenants, much more than his share of the whole joint property. If so, he
Judgment affirmed.