Finch v. Baskerville
| Decision Date | 31 October 1881 |
| Citation | 85 N.C. 205 |
| Court | North Carolina Supreme Court |
| Parties | C. L. FINCH and wife v. C. T. BASKERVILLE. |
OPINION TEXT STARTS HERE
SPECIAL PROCEEDING for partition, heard on appeal (in a case pending in Granville county) at chambers, in Greensboro, on the 13th of September, 1881, before Gudger, J.
Defendant appealed from the judgment below.
Messrs. Gilliam & Gatling, for plaintiffs .
Messrs. Edwards & Batchelor, for defendant .
In this action, commenced in the probate court of Granville on September 7th, 1880, the plaintiffs ask for partition of certain lands devised by George T. Baskerville, their father, and inherited from their deceased mother, who survived him, to which the feme plaintiff and the defendants are entitled as tenants in common; and they further demand a division and distribution of the personal estate derived from both sources, of which the defendants have had the possession and enjoyment, and an account of such as they may have wasted and lost or appropriated to their own use, to the end that they may be charged with the value thereof. The defendants answer admitting the tenancy in common of the land retained (a part having been sold under a judicial proceeding at their instance) and their equal right to share in the personal estate of both ancestors, and they submit to the required division of both, and that an account may be taken in which each party shall be charged with portions of the personal estate, as he may be justly liable for in the proposed settlement. Thereupon a decree was made in October for partition of the lands, and commissioners appointed for that purpose, the matters of account and the distribution of the remaining personal estate being reserved. The commissioners made their report on March 8th, 1880, dividing the lands into three parts of equal value, and assigning to each tenant his and her share with specified boundaries in severalty. No exception is taken to the report, and no motion made for its confirmation. At this stage of the proceeding the plaintiffs file a written statement which seems to have been treated as an amendment to the complaint, but for which no leave appears of record to have been given, wherein they recite in substance that since the institution of the suit, they have learned that the personal property is in litigation in the circuit court of Mecklenburg, an adjoining county in Virginia, in a suit at their instance against the defendants and others, and they therefore abandon all claim to that fund in this action, and confine their demand to their share of a reasonable rental value of the lands while in the exclusive occupancy of the defendants, for the years from 1876 to 1880 inclusive, and of the profits and damages made and...
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