Bryan v. Washington Spivey

106 N.C. 95

• Court: Supreme Court of North Carolina
• Decided: February 15, 1890
• Status: Published

Opinion

Avery, J.

after stating the facts: In actions to recover land it is sufficient if the complaint distinctly describe a tract of land and allege that the defendant is in possession of some part of it. Speight v. Jenkins, 99 N. C., 143. It is a well established rule that a number of trespassers, who have settled upon different parts of one tract of land, or upon several, that are contiguous and have been consolidated by the owner of them into one body, may be sued in a single suit brought by the latter to recover possession and have the title adjudicated. Thames v. Jones, 97 N. C., 121; Love v. Wilbourn, 5 Ired., 344; Lenoir v. South, 10 Ired., 237.

After such an action has been brought, it is within the sound discretion of a nisi prius Judge, on motion of the defendants, or any of them, to allow a severance and a separate trial of the issue of title and possession as to each defendant, if, in the opinion of the Court, “justice will thereby be promoted.” The Code, §407. It was error to hold that the defendants had a right to demand separate trials, and, as the Judge made the order upon the ground that he was not at liberty to deny the motion, the judgment of the Court must be reversed, to the end that a similar motion may be submitted and passed upon in the exercise of a purely discretional power.

Where an order of severance is made, it is equivalent to dividing one into a number of distinct actions with almost all of the expense that would have been incident to a suit against each alleged trespasser, and, therefore, it is proper that every defendant should be required to proceed in the same way, or to make the same provision as to securing the costs of trying the issues involving his own title and possession as if he had been the sole defendant. The Code, §227.

It is, moreover, within the discretion of the Court to require each of the defendants, in a case like this, after severance, to file an answer in the nature of a bill of particulars specifically describing the land claimed by him, and disclaiming as to the other land embraced in the deed declared upon by the plaintiff. The Code, 259; Fitzgerald v. Shelton, 95 N. C., 519. There is error. The judgment appealed from is reversed.

Error.