King v. Neel

• Decision Date: 11 May 1896
• Citation: 25 S.E. 513,98 Ga. 438
• Parties: KING v. NEEL.
• Court: Georgia Supreme Court

25 S.E. 513

98 Ga. 438

KING v. NEEL.

Supreme Court of Georgia

May 11, 1896

Syllabus by the Court.

1. While an action of trover will not, as a general rule, lie in favor of one of several tenants in common against a co-tenant, for the reason that the possession of one is the possession of all, yet such an action will lie against the vendee of a co-tenant who sold and delivered the entire property without the consent of the other common owners.

2. The ground of the motion for a new trial as to newly-discovered evidence, in the light of the counter showing, and in view of the evident want of diligence to obtain such evidence before the trial, is without merit. No cause for a reversal appears.

Error from superior court, Bartow county; W. T. Turnbull, Judge.

Action by J. M. Neel, receiver, against B. J. King. Judgment for plaintiff. Defendant brings error. Affirmed.

J. W Harris, Jr., for plaintiff in error.

Neel & Swain, for defendant in error.

LUMPKIN J.

Stripped of all complication, this case turned upon the question indicated in the first headnote, and that question has been clearly settled by at least two decisions rendered by this court not long after its organization, and which seem to be well supported. See Hall v. Page, 4 Ga. 428, and authorities cited; Starnes v. Quin, 6 Ga. 84. The decision of the court in both cases was pronounced by Judge Nisbett. In the former (page 435) he says: "As a general rule, it is not denied anywhere but that trover will not lie in favor of one tenant in common against his co-tenant. The reason is that the one tenant is as much entitled to the possession as the other. The possession of one is, in law the possession of both. *** An exception to this rule is where there is a destruction or loss of the common property by one of the tenants. *** Another exception is found in the case of a sale of the whole property by one tenant. Tenants in common having equal right of possession, and an undivided property, one has no right to dispose of the property and transfer the possession, to the injury of the other. In this regard, they are unlike partners." In the latter case, Judge Nisbett says (page 87): "It is true, generally, that an action of trover does not lie in favor of one tenant in common against his co-tenant, because the possession of one is the possession of all; yet it will lie in case of the destruction or sale of the property."

The ground of the ...