Thomas v. Thomas

• Decision Date: 07 October 1914
• Docket Number: 142.
• Citation: 82 S.E. 1032
• Parties: L.R.A. 1915B,219, 166 N.C. 627 v. THOMAS. THOMAS ET AL.
• Court: North Carolina Supreme Court

82 S.E. 1032

L.R.A. 1915B,219, 166 N.C. 627

THOMAS ET AL. v. THOMAS.

No. 142.

Supreme Court of North Carolina

October 7, 1914

Appeal from Superior Court, Lee County; Peebles, Judge.

Action by Mary Thomas and others against Rosa Thomas. From a judgment for defendant, plaintiffs appeal. New trial ordered.

A life tenant may cut sufficient timber to repair necessary buildings and for fuel, to make and repair implements of husbandry, and to repair fences and hedges.

Life tenant held entitled to sell timber to make repairs only where the sale is made with the present view of making repairs, the proceeds are honestly expended, and no substantial injury to the inheritance is caused.

Civil action to recover damages for waste, tried before his honor Peebles, judge, and a jury, at March term, 1914, of the superior court of Lee county. Plaintiffs, children of John P Thomas, deceased, by a former wife, and owners of a vested estate in remainder under their father's will, sued the defendant, the widow of said Thomas, who occupies and possesses the land as life tenant under said will, claiming that the life tenant has committed waste upon the land.

The evidence on part of plaintiffs tended to show that, since defendant had entered on the property as life tenant under the will, she had sold a lot of timber for cross-ties, receiving pay therefor, also some cordwood and saw stocks, this last to a small amount and which had been paid for by labor done on the estate by the purchaser. Some of the witnesses testified that the permanent damage done to the property by the sale and removal of this timber would amount to $75 or $100, but the evidence did not show that defendant had realized more than $40 or $50 from said sale. On examination in chief and cross-examination of plaintiffs' witnesses, it appeared that defendant while in possession of her present estate, had made some repairs on the property, had reconstructed a cotton house worth from $12 to $25, the estimates of the witnesses varying as to its value; that, at another time, she had rebuilt an old tobacco barn which had fallen, using as part the old timbers, and had also built and repaired some fencing on the property, the value of these improvements being under $50. The court, among other things, charged the jury:

"You will consider the evidence you have here from the witness stand and say whether or not the plaintiffs have satisfied you by the greater weight of the evidence; and that does not mean the greater number of witnesses, but that carries to your hearts and minds the greater amount of conviction. If in that way the plaintiffs have satisfied you that she sold more wood and timber off that land than she applied to repairing and keeping up the farm and buildings, then you should answer the first issue 'Yes', otherwise answer it 'No.' "

Plaintiff excepted. There was verdict for defendant on the issue as to commission of waste. Judgment, and plaintiff excepted and appealed.

Hoyle & Hoyle, of Sanford, for appellants.

R. H. Hayes, of Pittsboro, for appellee.

HOKE J.

In Norris v. Laws, 150 N.C. 604, 64 S.E. 501, the definition of waste as recognized at common law is given as follows:

"A spoil or destruction, done or permitted with respect to lands, houses, gardens, trees or other corporeal hereditaments, by the tenant thereof, to the prejudice of him in reversion or remainder or, in other words, to the lasting injury of the inheritance."

Definitions substantially similar are approved in Sherrill v. Connor, 107 N.C. 630, 12 S.E. 588, and King v. Miller, 99 N.C. 584, 6 S.E. 660, where waste is said to be a "spoiling or destroying of the estate, with respect to buildings, wood, or soil, to the lasting injury of the inheritance."

While these definitions are still regarded as sufficiently descriptive, as shown in the decisions referred to and others of like kind here and elsewhere, in adapting the general principle to conditions existent in this country, the acts which constitute waste have been variously modified, until it has come to be established that a tenant, as a general rule, may do what is required for the proper enjoyment of his estate to the extent that his acts and management are sanctioned by good husbandry in the locality where the land is situated, having regard, also, to the condition, and which do not cause a substantial injury to the inheritance. Norris v. Laws, Sherrill v. Connor, King v. Miller, supra; Lambeth v. Warner, 55 N.C. 165; Shine v. Wilcox, 21 N.C. 631; Ballentine v. Poyner and Wife, 3 N. C. 110; Sheppard v. Sheppard, 3 N. C. 382; Rutherford v. Wilson, 95 Ark. 246, 129 S.W. 534, 37 L. R. A. (N. S.) 763; Anderson v. Cowan, 125 Iowa, 259, 101 N.W. 92, 68 L. R. A. 641, 106 Am. St. Rep. 303.

In King v. Miller, the position is stated as follows:

"While, in its essential elements, waste is the same in this country and in England, being a spoil or destruction of houses, trees, etc., to the permanent injury of the inheritance, yet, in respect to acts which constitute waste, the rules are not the same. Here an act is not waste in law which is not waste in fact. The real and important inquiry, in such cases, is: Has the land been abused, during the life tenant's occupancy, by a

...