Day v. . Howard and Baker
Supreme Court of North Carolina
Civil aotioN, for the recovery of the possession of real estate, tried before Moore, J., at the July (Special) Term, 1874, of Edgboombe Superior Court, upon the following “ CASE AGREED. Bythel Bell, of Edgecombe county, died in 1802, leaving a will which was duly proved and recorded, and a copy of which is filed, &c. Ilis widow and five children, to wit, Marmaduke N. Bell, Henry C. Bell, William W. Bell, Elizabeth Bell and Margaret Bell survived him.
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Civil aotioN, for the recovery of the possession of real estate, tried before Moore, J., at the July (Special) Term, 1874, of Edgboombe Superior Court, upon the following “ CASE AGREED. Bythel Bell, of Edgecombe county, died in 1802, leaving a will which was duly proved and recorded, and a copy of which is filed, &c. Ilis widow and five children, to wit, Marmaduke N. Bell, Henry C. Bell, William W. Bell, Elizabeth Bell and Margaret Bell survived him. Elizabeth Bell died soon afterward, without issue and intestate. In the year 1809, and after the death of the said Elizabeth, the said Win. W.…
1Opinion of the CourtPeaesoN, C. J.
The action “'to recover possession of land and damages ” under C. C. P. is a substitu'te for the action of ■“ Ejectment'and Trespass for mesne profits.”
Ejectment could not be maintained by a teuant in common against a co-tenant unless there had been an actual ouster. The same rule applies to the present action.
We assume from the “case agreed” that any technical objection in respect to actual ouster is waived, and the ouster is admitted for the purposes of the action so as to present the case upon the title of the parties, growing out of the operation of the statute of limitations.
For the sake…
2Cited by17 opinions
- Caldwell v. . NeelySupreme Court of North Carolina · 1879
- Page v. . BranchSupreme Court of North Carolina · 1887
- Allred v. Smith.Supreme Court of North Carolina · 1904
- Covington v. . StewartSupreme Court of North Carolina · 1877
- Ward v. . Farmer SoutherlandSupreme Court of North Carolina · 1885
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