Chambers v. Chambers

10 N.C. 231

Opinions

Taylor, Chief Justice.

It has been held, that if two were jointly possessed of a horse, and one of them sell him, an action of account will lie against him for his share of the money; and it has been thought, that an action on the case for money had and received might also be brought; because, by the sale and turning the thing into money, the joint interest was gone, and each had a separate interest for a sum certain. (Wittes 209.) But when one tenant in common secured the rents and profits of a real estate, the other could not bring an action of account against him at common law, unless the latter "were appointed bailiff. This is remedied, in England, by the statute of Anne, which, however, has not, I believe, been extended, by construction, to an action on the case. In this state, the law l’emains as it was when Lord Coke wrote; “ albeit one tenant in common take the whole profits, the other has no remedy by law against him, for the taking of the whole profits is no ejectment,” (Co. Lit. 199 b.)