Knott v. Taylor

• Decision Date: 31 May 1888
• Citation: 6 S.E. 788,99 N.C. 511
• Parties: KNOTT et al. v. TAYLOR et al.
• Court: North Carolina Supreme Court

6 S.E. 788

99 N.C. 511

KNOTT et al. v. TAYLOR et al.

Supreme Court of North Carolina

May 31, 1888

Appeal from superior court, Granville county; GILMER, Judge.

Action by Fielding Knott et al. against J. A. Taylor and wife, and the sheriff of Granville county, to enjoin the execution of a writ of possession issued from the superior court of Warren county in pursuance of a judgment in an action of ejectment pending in said court, wherein Joseph H. Gooch, the grantor of the present plaintiffs, was defendant, and said Taylor and wife were plaintiffs. Judgment for plaintiffs, and defendants appealed.

Batchelor & Devereux, for appellants.

J. W Hays, for appellees.

MERRIMON J.

It appears from the pleadings, the orders and judgments in this action, that, in 1852, the defendants, Taylor and wife brought their action of ejectment, under the method of procedure then prevailing, against Joseph H. Gooch, in the superior court of the county of Granville, to recover the possession of the land described in the pleadings. That action in its course was removed to the superior court of the county of Warren for trial, and was continued from term to term for many years, and was at the instance of the plaintiffs therein transferred, as allowed by statute, to the superior court of the last named county, as established under and in pursuance of the present constitution of this state. The defendant in that action removed to the state of Texas and died there on the 24th day of June, 1876. The action, as appears, was never abandoned, but continued from term to term of the court until the fall term, 1878, thereof, when it was tried "by a jury, and verdict and judgment were rendered for plaintiffs; the plaintiffs having no actual knowledge of Gooch's death." This judgment was "for an undivided ninth part or share of said land." "No notice issued to any of the heirs-at-law or real representatives of said Gooch after his death, nor were they or any of them ever made parties to said suit," nor was any notice given to the present plaintiffs or any of them. Pending the action named and referred to, the defendant Gooch therein sold the land embraced by it, and put the purchasers in possession thereof, and the plaintiffs in the present action are in possession of about 600 acres of the land "holding the same by title acquired through the purchasers from said Joseph H. Gooch." A writ of possession issued upon the judgment mentioned, commanding the present defendant sheriff to eject the said Gooch, and "any person who since the commencement of said action has come into possession of said premises, or any part thereof," and to put the plaintiffs in that action (the present defendants, Taylor and wife) in complete exclusive possession of the whole thereof, although the judgment was in their favor for "one undivided ninth part only of said land," etc., and it is alleged that the present defendant sheriff is about to execute the said writ, etc. The plaintiffs allege, further, that they have placed valuable improvements on the land since they have had possession thereof; that part of them own a grist mill, etc. They ask for relief specially by injunction; and for general relief. A judge at chambers granted a restraining order, and afterwards, upon notice, an injunction was granted, restraining the sheriff from executing the writ of possession mentioned, further than to place the other defendants, as owners of one undivided one-ninth of the land, in possession thereof with the plaintiffs. The defendants in their answer deny the alleged irregularities in the action of ejectment mentioned, and insist that the judgment therein in their favor is effectual; they admit that under that judgment they are entitled to only one undivided ninth part of the land, and they only ought to be put in possession as such owners with the plaintiffs. They further insist that the plaintiffs' remedy for the grievances complained of is by motion or other proper proceeding in the action of ejectment, and not by this separate and independent action. In an amendment to their answer, the defendants allege that the plaintiffs, and those under whom they claim, have been in possession of the lands for 50 years, receiving the rents and profits thereof; that they are entitled to part thereof, etc., and demand an account. They further ask for an order of the court directing partition of the land, etc. Afterwards, in the course of the action, the court allowed the plaintiffs to amend their complaint, so as to allege irregularities in the action of ejectment mentioned, and the judgment therein in favor of the defendant's husband and wife; and also, that the latter are not the owners of one undivided ninth part of the land as adjudged in the action of ejectment; that they, the plaintiffs, are the exclusive owners of the fee therein. They allege...