1. Trespass--motion for directed verdict--ownership of land
The trial court erred in a trespass action by granting defendant's motion for directed
verdict under N.C.G.S. § 1A-1, Rule 50 based on failure to prove title, because plaintiff
presented sufficient evidence of ownership when: (1) plaintiff amended his complaint to conform
to the survey map; (2) plaintiff presented uncontradicted testimony that he and his siblings owned
the land as heirs of their father; and (3) defendant conceded in his brief that plaintiff had an
undivided one-quarter interest in the property.
2. Trespass--motion to dismiss--ejectment action--tenancy in common--necessary
parties
The trial court erred in a trespass action by granting defendant's motion to dismiss under
N.C.G.S. § 1A-1, Rule 12(b)(7) based on plaintiff's failure to join his three siblings as necessary
parties, because: (1) plaintiff owned an undivided one-quarter interest in the land in fee simple as
a tenant in common, and a tenant in common who owns an undivided interest in land can
maintain an action for ejectment and damages without joining his co-tenants in common; and (2)
even if it had been necessary, a Rule 12(b)(7) motion is only appropriate when the defect cannot
be cured and a court ordinarily should allow a continuance for the absent party to be brought into
the action.
THOMAS, Judge.
Plaintiff, Alfonso Godette, Jr., appeals an order granting a
directed verdict motion in his attempt to obtain both restitution
for damages and injunctions in an action for trespass. The trial court ruled plaintiff had not shown ownership and,
even if he had, could not maintain suit without joining the other
property owners as parties. Plaintiff sets forth two assignments
of error. For the reasons discussed herein, we reverse and remand.
Plaintiff presented evidence in a jury trial that his father,
Alfonso Godette, Sr. (Godette, Sr.), had maintained ownership of
the land in question from 1941 until he died intestate in 1963.
Plaintiff, his brother, and two sisters were the only heirs. The
tract consisted of approximately 2.6 acres. Godette, Sr. had
allowed others in the area to occasionally use a road on the
property, but the land was primarily worked as a farm. After
Godette, Sr.'s death, plaintiff's two sons eventually built homes
on the land. One of plaintiff's sons, Lovindus E. Godette, had
lived there for more than nineteen years at the time of trial.
In July 1999, defendant, Wendell Godette, allegedly entered
the property with a chainsaw and cut the water line, water meter,
shrubbery and approximately 100 trees. Plaintiff filed suit,
seeking restitution and preliminary and permanent injunctions
against defendant. Defendant answered and counterclaimed that
plaintiff did not own the land, the road was “public,” and
plaintiff had wrongfully attempted to block the road.
At the close of plaintiff's evidence, defendant made a Rule 50
motion for directed verdict for failure to prove title and a Rule
12(b)(7) motion to dismiss for failure to join the co-tenants in
common as necessary parties. The trial court granted both motions.
Plaintiff appeals. [1]By plaintiff's first assignment of error, he argues the
trial court erred in directing a verdict because he had introduced
sufficient evidence of ownership. We agree.
“A motion for directed verdict is appropriately granted only
when by looking at the evidence in the light most favorable to the
nonmovant, and giving the nonmovant the benefit of every reasonable
inference arising from the evidence, the evidence is insufficient
for submission to the jury.” Crist v. Crist, 145 N.C. App. 418,
550 S.E.2d 260 (2001) (citing Streeter v. Cotton, 133 N.C. App. 80,
514 S.E.2d 539 (1999)).
In the instant case, plaintiff had the burden of proof to show
ownership. In his complaint, plaintiff alleged he owned the land
in fee simple absolute, but the legal description of the land in
plaintiff's complaint did not match his evidence of a survey map at
trial. However, the trial court allowed him to amend his complaint
to conform to the survey map. He also presented uncontradicted
testimony that he and his siblings owned the land as heirs of
Godette, Sr. There was testimony that plaintiff's sons had both
built homes on the land, one of whom had continuously lived there
for more than nineteen years preceding trial. While plaintiff did
not produce a deed establishing his ownership, defendant conceded
in his brief that plaintiff had an undivided one-quarter interest
in the property. Thus, in the light most favorable to plaintiff,
there was sufficient evidence of plaintiff's interest in the land
for submission to the jury.
[2]By plaintiff's second assignment of error, he argues atenant in common who owns an undivided interest in land c
an
maintain an action for ejectment and damages without joining his
co-tenants in common. We agree.
Defendant moved to dismiss based on plaintiff's failure to
join his three siblings as necessary parties pursuant to Rule
12(b)(7). “A 'necessary' party is one whose presence is required
for a complete determination of the claim, and is one whose
interest is such that no decree can be rendered without affecting
the party.” Begley v. Employment Security Comm., 50 N.C. App. 432,
438, 274 S.E.2d 370, 375 (1981) (citations omitted). However,
plaintiff claimed he could maintain his action as an owner in fee
simple. Ownership in fee simple is “one in which the owner is
entitled to the entire property, with unconditional power of
disposition during one's life, and descending to one's heirs and
legal representatives upon one's death intestate.” Black's Law
Dictionary 615 (6th ed. 1990). Plaintiff stated he inherited a
one-quarter interest in the land, along with his three siblings.
Thus, while plaintiff may not have owned all of the land in fee
simple, he did own an undivided one-quarter interest in fee simple
as a tenant in common. See Rawls v. Williford, 121 N.C. App. 762,
468 S.E.2d 460 (1996); Moore v. Baker, 222 N.C. 736, 24 S.E.2d 749
(1943).
A tenancy in common is “a tenancy by two or more persons, in
equal or unequal undivided shares, each person having an equal
right to possess the whole property but no right of survivorship.”
Black's Law Dictionary (7th ed. 1999). It is well-establishedthat one tenant in common may maintain an action for t
respass upon
the lands. In Lance v. Cogdill, our Supreme Court held
[o]ne tenant in common may sue alone and
recover possession of the common property, as
against a third party claiming adversely to
him and his cotenants, even though he can
prove title to only an undivided interest,
since each tenant in common is entitled to
possession of the whole, except as against a
cotenant.
Lance v. Cogdill, 238 N.C. 500, 505, 78 S.E.2d 319, 323 (1953).
See also Rogers v. Kelly, 66 N.C. App. 264, 311 S.E.2d 43 (1984);
Baldwin v. Hinton, 243 N.C. 113, 117, 90 S.E.2d 316, 319 (1955).
Consequently, plaintiff did not need to join his siblings in order
to maintain the suit. Even if it had been necessary, a Rule
12(b)(7) motion is only appropriate when the defect cannot be
cured, and a court ordinarily should allow a continuance for the
absent party to be brought into the action and plead. Howell v.
Fisher, 49 N.C. App. 488, 491, 272 S.E.2d 19, 22 (1980), cert.
denied, 302 N.C. 218, 277 S.E.2d 69 (1981). Without joinder,
plaintiff will only be able to recover one-fourth of the damages in
a pro-rata share. Lance, 238 N.C. at 505, 90 S.E.2d at 323.
We therefore hold plaintiff presented sufficient evidence to
allow the case to go to the jury and the trial court erred in
granting defendant's motion for directed verdict and motion to
dismiss based on Rules 50 and 12(b)(7). We reverse and remand this
case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
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