King v. Neel

Lumpkin, Justice.

Stripped of all complication, this case turned upon the question indicated in the first head-note, and that question has been clearly settled by at least two decisions rendered by this court not long after its organization, and which seem to be well supported. See Hall v. Page, 4 Ga. 428, and authorities cited; Starnes et al. v. Quin, 6 Ga. 84. The decision of this court in both cases was pronounced by Judge Nisbet. In the former, page 435, he says: “As a general rule, it is not denied anywhere, but that trover will not lie in favor of one tenant in common against his cotenant. The reason is, that the one tenant is as much entitled to the possession as the other. The possession of one is, in law, the possession of both. . . An exception to this rule is, where there is a destruction or loss of the common property by one of the tenants. . . Another exception is found in the case of a sale of the property by one tenant. Tenants in common having equal right of possession, and an undivided property, one has no right to dispose of the property and transfer-the possession, to the injury of the other. In this regard, they are unlike partners.” In the latter case, Judge Nisbet says (page 87):

“It is true, generally, that an action of trover does not lie in favor of one tenant in common against his cotenant, because the possession of one is the possession of all; yet it will lie in case of the destruction or sale of the property.”

The ground of the motion for a new trial relating to newly discovered evidence was fully met by the counter-showing. Besides, there was an evident want of diligence to obtain this evidence before the trial.

The judgment below was manifestly right.

Judgment affirmed.