#### LEANDER LEE et al. v. G. M. LEE et al.

(Filed 29 September, 1920.)

1. Trespass — Estates—Life Estates — Evidence—Nonsuit.

A tenant for life in possession of tbe lands may recover nominal damages for trespass tbereon, and a motion for judgment as of nonsuit upon tbe evidence is properly disallowed.

2. Trespass — Evidence—Admissions—Survey—Court’s Supervision.

Belct, under tbe admissions in tbis action of trespass, a certain portion of tbe land awarded to tbe defendant should be marked under tbe supervision of tbe court to avoid future litigation.

Appeal by defendant from Connor, J., at tbe November Term, 1919, of HARNETT. .

Tbis is an action to recover damages for trespass on land by entering tbereon and cutting valuable timber trees.

Tbe plaintiff alleges tbat be is tbe owner in fee of tbe land described in tbe complaint, and in possession of tbe same, wbicb allegation is' denied by tbe defendant.

It is not denied tbat tbe plaintiff was tbe owner of tbe land for life at tbe commencement of tbe action.

At tbe conclusion of tbe evidence, tbe defendant moved for judgment of nonsuit on tbe ground tbat tbe action is one to recover damages for injury to tbe inheritance, and tbat tbe plaintiff, as life tenant, cannot maintain tbe action.

Tbe motion was overruled, and tbe defendant excepted.

There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed.

Godwin & Williams, Baggett & MordeccCi, and C. L. Guy for plaintiff.

JS. F. Young and Clifford & Townsend for defendant.

AlleN, J.

There is authority for tbe position tbat a tenant for life may recover all-of tbe damages to tbe inheritance, but tbis does not seem to be tbe prevailing rule (Rogers v. Atlantic Company, Anno. Cases, 1916, c. 877, and note), although it-was held in Wheeler v. Tel. Co., 172 N. C., 11, that one in possession, nothing else appearing as to title, may recover tbe entire damages against a wrongdoer, but however tbis may be, one in possession may, in any event, recover nominal damages for tbe-wrongful entry into tbe land, although be suffers no substantial damage. Frisbee v. Marshall, 122 N. C., 763.

This- being true, tbe plaintiff, as life tenant, can maintain tbis action for an entry upon tbe land of wbicb be was in possession, and be has in *87tbis Court waived all claim to recover substantial damages, and bas agreed tbat bis recovery of damages be stricken from tbe judgment.

Tbe pleading is sufficient, as it not only alleges title but possession, but if it was otherwise, we would grant tbe motion of tbe plaintiff to amend as it appears to us tbe action bas been tried on its merits and tbe defendant bas not been deprived of any defense.

Tbe judgment, therefore, will be affirmed, except tbe recovery of damages will be stricken out, and it will be further modified so tbat tbe plaintiff will not recover “tbat portion of tbe land in dispute represented by tbe said triangle on tbe court map, which is included in tbe defendant’s cultivated field,” as tbis is in accordance with tbe admission of tbe plaintiff appearing of record.

Tbe cultivated field covered by tbis admission ought to be marked under'tbe supervision of tbe court, so tbat future litigation may be avoided.

Modified and affirmed.