Den Ex Dem. Johnson v. Swain

44 N.C. 335

• Court: Supreme Court of North Carolina
• Decided: June 5, 1853
• Status: Published

Opinion

PeaRSon, J.

Admitting it to be true, that a plaintiff in ejectment, who pending the action takes possession of the premises, cannot further maintain it, we fully concur with his Honor that the Court can take notice of no fact unless it be alleged in some proper form, so that issue may be taken on it. Here there was no plea, and of course no issue to which the evidence offered was relevant.

But suppose there had been a plea “ since the last continuance”, the evidence offered would not have supported the allega tion pat in issue, for there was a part of the premises of which the defendant retained possession, and from which he “ excluded the plaintiffconsequently as to that part the plaintiff still had a right to maintain his action. A tenant in common can bring ejectment, when there is an actual ouster.

Per Curiam. Judgment affirmed.