Johnston v. Pate

• Decision Date: 31 October 1886
• Citation: 95 N.C. 68
• Court: North Carolina Supreme Court
• Parties: R. D. JOHNSTON v. GEORGE D. PATE.

95 N.C. 68

R. D. JOHNSTON

v.GEORGE D. PATE.

Supreme Court of North Carolina.

October Term, 1886.

The action was tried before Shepherd, Judge, at February Term, 1886, of CRAVEN Superior Court, upon a petition filed by defendant for an allowance for betterments.

After the termination of the plaintiff's action, in his recovery of the land sued for, reported in 90 N. C., 334, the defendant applied, in the Superior Court, for an allowance for the increased value imparted to the land by improvements made thereon, while he was in possession, and acting under a bona fide belief of his title, the facts of which, as therein stated, are verified by oath.

The allegations in the petition not being controverted, at Fall Term, 1880, it was ordered that the case be continued, and that the defendant enter into bond, payable to the plaintiff, in the sum of five hundred dollars, conditioned, to pay all damages, rents and profits that may be assessed against him, in the trial of the action, and in the meantime, that the defendant be enjoined from committing waste of any kind. And it is further ordered, that upon giving the bond, above required, execution be stayed.

The bond was never given, and on February 2d, 1881, a writ of possession and execution issued to the sheriff, who carried out the mandate, and returned the writ, with endorsement of satisfaction.

Upon the hearing of the defendant's petition, at February Term, 1886, the plaintiff's counsel moved to dismiss the application, upon the following assigned grounds:

1. For that upon the failure of the defendant to file the bond required in the order of Graves, Judge, and the issuing execution and return of the writ of possession and execution, as above set forth, the original action was at an end, and the petition, which was a proceeding in the cause, could not be entertained after the determination of the main action.

2. For that Graves, Judge, before whom said petition was presented, permitted said question of betterments to be tried and determined in said action upon a condition, to-wit: the filing of a bond by the defendant, as set forth in the order of Graves, Judge, and that as the trying and determining said question of betterments in the original action was within the discretion of the Judge before whom said petition was presented, and as the permission to try said question in said main action was granted, and the execution stayed, upon the condition above set forth, and as the condition had never been performed by the defendant, the petition was not properly before the Court in said action, and could not be entertained. The motion was overruled, and the Court within its discretion, allowed the defendant then to proceed to trial upon his said petition. The plaintiff excepted. A jury was empaneled and found all issues in favor of the defendant. Motion for a new trial overruled. Plaintiff appealed.Mr. W. W. Clark, for the plaintiff .

No counsel for the defendant.

SMITH, C. J., (after stating the facts).

We cannot give our assent to either of these propositions, nor yield to the force of the argument urged in their support.

The cause was not determined by the defendant's failure to give the required bond.

It was retained by the order of continuance, and the bond was...