{
  "id": 8693027,
  "name": "JOHN TYSON, Jr. v. G. J. SHEPHERD and others",
  "name_abbreviation": "Tyson v. Shepherd",
  "decision_date": "1884-02",
  "docket_number": "",
  "first_page": "314",
  "last_page": "317",
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      "cite": "90 N.C. 314"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T20:11:38.032493+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JOHN TYSON, Jr. v. G. J. SHEPHERD and others."
    ],
    "opinions": [
      {
        "text": "Sjutii, C. J.\nThe complaint alleges in the first article that the plaintiff is the \u201cowner in fee-simple of the land described,\u201d and in the second :\n\u201cThat the defendants unlawfully withhold the possession thereof from the plaintiff,\u201d and demand judgment for possession and damages.\nThe defendants deny the allegation that the plaintiff is \u201cowner in fee-simple of the'land described in the complaint or any part thereof,\u201d and make no answer to the allegation contained in the second article of the complaint.\nAt the trial the defendants proposed an issue as to the plaintiff\u2019s seizin in fee, which was refused by the court as immaterial, inasmuch as the failure to answer the second allegation of the complaint was an admission that they wmre in possession- and withholding it from the plaintiff wrongfully, and possession and damages were only claimed in the action.\nThe jury assessed the damages, the only enquiry submitted to them, and from the judgment thereon the defendants appeal.\nWhile the title of the plaintiff, as owner in fee of the land, when asserted, may be put in issue by the defendants\u2019 denial and require proof in its support in order to a recovery, the right of possession may have been separated from the inheritance, so that the seizin may be in one and the right of possession in another, the latter may successfully prosecute his action to get or regain possession from a wrong-doer.\nThe defendants\u2019 answer seems to recognize this distinction, and while they controvert the allegation of full ownership in the plaintiff, they concede his right to possession and their wrongful withholding from him. How could their occupation be a wrong to him unless it was inconsistent with his right to occupy the premises? And if so, the state of the title is not drawn in controversy, nor the plaintiff called on to show that it is vested in him. His right to a judgment for what he demands is as complete as if he had title in fee.\nSome comments have been made upon the form of the allegation in characterizing the defendants' withholding as wrongful, as blending a fact with matter of law and not in accordance with the rules of pleading introduced by the Code of Civil Procedure.\nThe complaint would not be defective in failing to aver \u201c that the defendants illegally and wrongfully withheld the possession from the plaintiff, yet the absence of those words was a subject of- exception in the case in which that ruling was made. Garrett v. Trotter, 65 N. C., 430.\nIt is certainly an appropriate form of charging the defendants, and an admission of the fact and law involved in the plaintiff\u2019s claim to be put in possession. An occupation may bo rightful or wrongful, and a defendant may admit his possession wrongful against one claiming it and dispense with an enquiry as to its lawfulness.\nThis the defendants do, and thus they submit to the judgment of the court against them.\nThe policy of the new system is to narrow controversy to such disputed matters as arc necessary to be disposed of in order to a final determination, and, when the concessions are sufficient for such purpose, to disregard others which are not essential.\n\u2022 Wo are not disposed to acquiesce in such refinements as were made by the supreme court in California, where in Payne v. Treadwell, 5 Morris\u2019 Rep., 310, it is held that an allegation of ownership in fee and possession in defendant unlawfully withheld, was insufficient, for the reason \u201c that the defendant may be in possession as tenant or otherwise, and his possession consistent with the plaintiff\u2019s title\u201d; nor to the ruling in New York in Lawrence v. Wright, 2 Duer, 673, where it is declared that an averment of title in the plaintiff is defective, in that it is not a statement of fact but a conclusion of law.\nOn the other hand, such a complaint as was filed in Payne v. Treadwell is sustained on demurrer by the supreme court of New York, in Sanders v. Leary, 16 How. Pr. Rep., 308, while this court has declared a demurrer to a complaint in such form frivolous, in Johnston v. Pate, 83 N. C., 110.\nThere is no error and the judgment must be affirmed.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Sjutii, C. J."
      }
    ],
    "attorneys": [
      "Messrs. S. T. Ashe, J. A. Lockhart and T. P. Deverenx, for plaintiff.",
      "Messrs. J. D. Shaw, Strong & Sncd.es, and J. D. Pemberton, for defendants."
    ],
    "corrections": "",
    "head_matter": "JOHN TYSON, Jr. v. G. J. SHEPHERD and others.\nEjectment, pleading in.\n1. In ejectment, the plaintiff alleged that he was the \u201cowner in fee of the land,\u201d and that defendant \u201cunlawfully withholds possession thereof from the plaintiff\u201d; and the defendant denied the first allegation, but made no answer to the second; Held, that an issue as to the plaintiff\u2019s seizin in. fee was immaterial, inasmuch as the failure to answer the second allegation was an admission of the wrongful withholding the possession from the plaintiff.\n2. The averment in the complaint of the \u201c unlawful withholding \u201d is sufficient under The Code.\n(Garrett v. Trotter, 65 N. C., 430; Johnston v. Tate, S3 N. C., 110, oiled and approved).\nEjectmeNT tried at Spring Term, 1883, of Arson Superior Court-, before MctcRae, J.\nThe defendants appealed from the ruling and judgment of the court below\u2019.\nMessrs. S. T. Ashe, J. A. Lockhart and T. P. Deverenx, for plaintiff.\nMessrs. J. D. Shaw, Strong & Sncd.es, and J. D. Pemberton, for defendants.\nMr. Justice Ashe did not sit on. the hearing of this case."
  },
  "file_name": "0314-01",
  "first_page_order": 330,
  "last_page_order": 333
}