Henderson v. Eller

Decided May 6, 1908

Supreme Court of North Carolina · decided 1908-05-06

AotioN tried before Ferguson, J., and a jury, at January Term, 1908, of Wilkes. Tbe plaintiff alleged that be-was tbe owner in fee and entitled to tbe possession of tbe land in controversy, and that tbe defendant was wrongfully in possession and unlawfully withholding it from him.

Decided 1908-05-06

Per Curiam.

¶1Tbe court below allowed tbe motion of tbe defendant to nonsuit plaintiff upon tbe ground tbat under tbe form of tbe pleadings, taken in connection with tbe evidence, a direct action to charge the land with tbe indebtedness should have been brought, to which all necessary parties should be made. '

¶2As no motion to amend tbe pleadings was made, bis Honor properly sustained tbe motion. Plaintiff may bring .another action within one year. Tussey v. Owen, ante, 335.

¶3Affirmed.