Coulbourn v. Armstrong , 243 N.C. 663 ( 1956 )

91 S.E.2d 912 (1956) 243 N.C. 663

John M. COULBOURN
v.
Mary Louis ARMSTRONG.

No. 163

Supreme Court of North Carolina.

March 21, 1956.

Herbert B. Edens, Windsor, Stuart A. Curtis, Ahoskie, and Gerald F. White, Elizabeth City, for plaintiff appellee.

Pritchett & Cooke, Windsor, for defendant appellant.

BARNHILL, Chief Justice.

The defendant excepts to the judgment entered and assigns the same as error. This and related assignments of error must be sustained.

An exception to a judgment raises the question whether any error appears on the face of the record. National Surety Corporation v. Sharpe, 233 N.C. 642, 65 S.E.2d 138; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609. This includes the question whether the facts found and admitted are sufficient to support the judgment. Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20, and cases cited.

It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings, and they, together with the answers thereto, must be sufficient to support a judgment disposing of the whole case. G.S. § 1-200; Griffin v. United Services Life Ins. Co., 225 N.C. 684, 36 S.E.2d 225, and cases cited; Carland v. Allison, 221 N.C. 120, 19 S.E.2d 245; Cathey v. Shope, 238 N.C. 345, 78 S.E.2d 135; Wheeler v. Wheeler, 239 N.C. 646, 80 S.E. 2d 755.

This rule applies to new matter alleged in the answer. Griffin v. United Services Life Ins. Co., supra, and cases cited.

Furthermore, a verdict should be certain and import a definite meaning free from ambiguity and sufficient in form and substance to support a judgment which is definite in terms and capable of execution. G.S. § 1-200; Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Edge v. North State Feldspar Corp., 212 N.C. 246, 193 S.E.2.

When the verdicts on the first, third, and fifth issues are considered in the light of these requirements, it is quite apparent that they are too vague, uncertain, and ambiguous to support a valid and enforceable judgment. It is equally clear that the judgment entered is so indefinite and uncertain that it will not support an enforceable execution. The facts which gave rise to the controversy between the parties are as undetermined and unsettled as they were before any verdict had been rendered except as to the fact defendant has in her possession some article or articles of personal property—uncertain in number and kind—described in the complaint and claimed by the plaintiff.

Plaintiff alleges that the property described in the complaint is wrongfully detained by the defendant. This the defendant denies. Non constat the plaintiff is the owner of the property as alleged, it does not necessarily follow that the defendant is in the wrongful possession thereof. Yet there was no issue submitted to the jury in respect thereto and the jury has not found that the defendant is in the wrongful possession of any part of the property in controversy.

Likewise, plaintiff alleges that on 2 December 1952 he and the defendant entered into a separation agreement which is duly recorded in the Bertie County Registry, but that on 18 December 1952 they became reconciled and lived together as man and wife for about ten days. The defendant admits the separation agreement, but denies that she and plaintiff ever were thereafter reconciled or lived together as man and wife, and she testified that the property in controversy was conveyed to her in the separation agreement. These allegations and this evidence raise a serious issue as to the right of the plaintiff to recover herein. Yet no issue was submitted in respect thereto.

Furthermore, the defendant in her answer alleges that the plaintiff executed a bill of sale to her for the first twenty items and the last three items listed in section 5 of the complaint, and she testified that the plaintiff thereafter procured the keys to her lock box, surreptitiously removed the bill of sale and wrongfully destroyed the same. She produced what she testified was a copy or duplicate original of the bill of sale signed by the plaintiff. The plaintiff admitted that he signed a paper writing other than the separation agreement but positively denied that it was the original of the copy produced by the defendant. No issue was submitted to settle this part of the controversy.

It is well for us to note here that this action may not be maintained in any event as to the property described in paragraph 7 of the complaint. One cotenant is as much entitled to the possession of the common property as the other, and the law will not take from the one so as to give the other property owned in common. The proper remedy is by a special proceeding to divide or to sell for division. "It is the well established principle of law in this State that a tenant in common cannot maintain an action against a cotenant to recover specific personal property. His remedy is partition. [Authorities cited.]" Winborne, J., in Dubose v. Harpe, 239 N.C. 672, 80 S.E.2d 454, 456.

While we do not care to attempt to chart the course of a retrial of this cause, it is not amiss to call attention to the fact that this action is purely possessory in nature. The question of value has not arisen and will not arise until after plaintiff has recovered judgment and issued execution thereon. Should the property recovered by him be returned in a damaged condition or if the sheriff should fail to find the property or some part thereof for which plaintiff had recovered judgment, then the question of the amount of damages to the property returned and the value of the property not seized will arise. The cause should be retained for that purpose.

In short, the verdict rendered is so ambiguous and inconclusive it will not support a valid judgment, and the judgment entered thereon will not support a valid execution. Therefore, it is necessary for us to vacate the verdict and judgment and order a

New trial.