McCracken v. . Love

60 N.C. 641

• Court: Supreme Court of North Carolina
• Decided: December 5, 1864
• Status: Published

Opinion

The bill is filed to obtain from the defendant an account of the profits of certain land which, it is alleged, the parties hold as tenants in common; and to obtain a sale, or a division of the same, in accordance with the rights of the parties, which are set forth.

A general demurrer to the bill is put in, which, we are informed, is based upon a supposed allegation in the bill that the defendant is in adverse possession, claiming to be sole seized of the lands.

We have examined the bill, and do not find anything which can bear such an interpretation. The words relied upon are these: "Your orator further showeth that the said James R. Love has received the rents and profits arising from said lands, and has appropriated the same to his own use and benefit."

This is but the common language of one tenant in common, who thinks his cotenant has wronged him by the reception of profits, and by no means implies a denial by the defendant of the plaintiff's interest in the land and rights to any profits.

(642) The defendant may plead that he is sole seized, and thus bring forward the matter which he is endeavoring here to interpose to prevent a partition; but the pleadings are not now in a condition to raise any such point. The demurrer must be overruled, and the defendant required to answer.