9 N.C. App. 217 | N.C. Ct. App. | 1970
The plaintiff and the additional defendant contend that the court below erred in that part of the judgment entered which required them to pay interest to the defendants Carr on amounts owed under the deeds of trust prior to 14 August 1968, the date this action was instituted.
The judgment entered by Judge McKinnon, in pertinent part, is as follows:
“8. That the defendants Wilbur Augusta Carr and wife, Shirley Viola Carr, have and they are hereby granted a lien upon the four-ninths undivided interest of Frances Cross Watson in the aforesaid described land for the following:
“ (a) $2,892.28 with interest until paid at the rate of 3% on
$19.48 from December 30, 1963
$84.54 from December 11, 1964
$84.18 from November 30, 1965
$83.82 from November 7, 1966
$1,201.39 from November 1, 1967
Interest until paid at 5% on
$182.13 from December 11, 1964
$293.60 from November 30, 1965
$360.62 from November 7, 1966
$582.51 from December 1, 1967
“This covers the liability of the four-ninths undivided interest of Frances Cross Watson in said land for amounts paid by the defendants Carr to Farm Home Administration on the deeds of trust recorded in Book 156, at page 298 and Book 128 and page 601, Lee County Registry.
“(b) $338.17 with interest at the rate of 6% on
$24.18 from December 30, 1963
$266.67 from March 6, 1964
$47.32 from July 20, 1964
“This covers the liability of the four-ninths undivided interest of Frances Cross Watson in said land for amounts paid by the defendants Carr to Palmer-Reeves Company, Inc., on. deed of trust recorded in Book 175, at page 233, Lee County Registry.”
Appeal op Original Dependants Carr
The defendants Carr upon this appeal contend that the court below committed error in submitting the fifth issue to the jury in regard to the reasonable rental value of the land.
The evidence presented at the trial was sufficient to establish as a fact that the plaintiff and the defendants owned the land as co-tenants, thereby entitling the plaintiff and the additional defendant to an accounting from the defendants Carr for rents actually received. Hunt v. Hunt and Lucas v. Hunt, 261 N.C. 437, 135 S.E. 2d 195 (1964). The evidence that the original defendant actually received rent for the property during the years 1964, 1965, 1966, 1967, 1968, and 1969 was sufficient to bring the plaintiff’s and additional defendant’s case within the rule announced by Conner, J., in Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66 (1936), as follows:
“One who has received more than his share of the rents and profits from lands owned by him and others as tenants in common is accountable to his cotenants for their share of such rents and profits. In the absence of an agreement or understanding to the contrary, he is ordinarily liable only for the rents and profits which he has received. He is not liable for the use and occupation of the lands, but only for the rents and profits received. 47 C.J., 465.”
The facts of the instant case are distinguishable from the facts in the case of Lovett v. Stone, 239 N.C. 206, 79 S.E. 2d 479 (1954).
It was error for the court to submit the issue of reasonable rental to the jury as the rule announced in Whitehurst, supra, limits the recovery in the instant case to rents actually received. Therefore, that portion of the judgment of the court below which pertains to the fifth issue is vacated and the case is remanded to the Superior Court of Lee County for further proceedings. The plaintiff and the additional defendant will be permitted to amend their pleadings to allege a claim for their portion of the rents actually collected by the defendants Carr. The remainder of the judgment is affirmed.
Appeal of Original Defendants Carr — Error and remanded.
