Richmond County NcArchives Court.....John Johnson Et Al, Duncan M. Kennedy V. 1873
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Connie Ardrey n/a December 14, 2009, 10:53 am

Source: North Carolina Reports June Term
Written: 1873

Duncan M. Kennedy v. John Johnson Et Al

A B and C, tenants in common, sells a tract of land to D, reserving "to 
themselves the right to live in the dwelling house upon said land, and to use 
all necessary outhouses, and to cultivate so much of said land as they may 
need during their natural lives." A and B die, and the survivor C, sells the 
land to E, who takes possession of all the tract not used by C. In a suit by D 
against E, to recover possession of the land and for damages: Held, that C the 
life tenant, was properly admitted to defend the action; and that the said 
action for the recovery of the land being commenced during the lifetime of C 
was premature, and could not be sustained.

The relief sought in the complaint of a plaintiff must be sought in the Court 
below, and must not be sprung in the Appellate Court for the first time.

Civil Action for title of possession of a tract of land, tried before Buxton, 
J., at the Spring Term, 1873, of the Superior Court of Richmond County.

One of the defendants, Archibald McLaurin, having left the premises sued for 
before the trial, the suit as to him was discontinued. The other defendant, 
Margaret Sinclair, claiming an interest in the land, was admitted as defendant 
upon filing the proper affidavit.

In his complaint the plaintiff claimed three hundred acres of land under a 
deed from Daniel Sinclair, Isabella Sinclair and the defendant, Margaret 
Sinclair, of date 22d January, 1866. For the consideration of five hundred 
dollars, and the further consideration of six bushels of corn, six ditto of 
wheat, and thirty-three and one-quarter pounds of pork to be paid by plaintiff 
yearly, the parties conveyed to him the land in controversy, "retaining to 
themselves the right to live in the dwelling house upon said land, and to use 
all necessary outhouses, and to cultivate so much of said land as they may 
need during their natural lives."

The plaintiff alleged that the defendants, Johnson and McLaurin, were in 
possession of said land, and demanded judgment for the same and for five 
hundred dollars damages.

The answers of the defendants alleged that the deed to the plaintiff was 
procured from the parties, who were old, ignorant and in feeble health, and 
who had been stripped by Sherman's army of everything they had by 
misrepresentation and fraud, and that the consideration mentioned in it had 
never been paid.

Daniel and Isabella Sinclair died before the commencement of the suit. 
Margaret Sinclair was living in the dwelling house on the land. The other 
defendant, Johnson, who had in October, 1870, purchased the land from Margaret 
was in possession of the remaining portion thereof.

The defendant submitted upon the plaintiff's own showing that this action was 
premature, as upon a proper construction of his deed his right to the 
possession of the property was not complete with the death of Margaret 
Sinclair.

The plaintiff contended that so far as Margaret Sinclair was concerned, she 
had admitted in her answer that she had disposed of her interest in the land 
by deed to her codefendant, and therefore had no right to make herself a party 
to the suit, and moved that her name be stricken from the record. His Honor 
refused the motion, and the plaintiff excepted. The plaintiff further 
contended that as to the defendant, Johnson, he was entitled to a recovery 
against him.

His Honor, upon consideration, was of opinion that it appeared from the 
answers that the relation between the defendants, Johnson and Margaret 
Sinclair was congeable; and further, that this action brought in the lifetime 
of Margaret Sinclair, the survivor of the life tenants, was premature; and so 
intimating that the plaintiff was not entitled to recover in deference to such 
opinion, the plaintiff submitted to a nonsuit. Judgment of nonsuit, and appeal.

N. MaKay and Hinsdale, for appellant
W. McL. McKay, contra

[NC Supreme Court]
Reade, J.
There is no error
Per Curiam
Judgment affirmed

[See court case for Judge Reade's complete findings]

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