
    Richard J. Darant v. George Cabbage.
    
      Tried before Mr. Justice Earle, at Beaufort, Fall Term, 1883.
    The interest of 5¡>ád¡“s thlfsub-j™1 of 'evr01,11 ccution; and in jj? act¿°n chasertorecover courtSSwm ants' t^becoine '“-defendants; action would bo dofeated- 
    
    Trespass to try titles. The land in dispute had been conveyed to the wife of defendant, and her infant children, George, John and Edward Cabbage, as joint tenants. By virtue of a judgement and execution against the defendant, the land had been sold, or his interest in it, and purchased by the plaintiff, who brought this action to dispossess him. The above named infants moved the Court,' or an application was made on their behalf, to be admitted as parties on the record, by their guardian, to defend the suit with the defendant, or for him.
    Earle, J. The defendant, as the husband of one of the grantees in the deed, and jomtenants, had an interest m the land. He was entitled to the occupation'and use of the share of his wife during the coverture, and if he survived, to one-third of her share in fee. It seemed to be conceded that his interest was the subject of levy and sale, and that it passed to the plaintiff. I was of that opinion. If this be conceded, then he was entitled to recover against the defendant, and to have possession.
    The plaintiff, it is true, became tenant in common with the others, and as such he could not maintain an action against them. To admit them, therefore, as co-defendants, would at once turn the plaintiff out of Court, and compel him to institute proceedings for partition. The defendant was in possession by virtue of his own interest, whatever that may be, and not as trustee for the infants. The plaintiff was entitled to dispossess him, and I would not protect the rights of the infants by defeating his action, in which he had established his right to recover.
    His Honor refused the motion, and the jury, under his charge, having found a verdict for the plaintiff, he granted an order to stay the habere facias possessionem, until the infants could apply for partition.
    The infant joint tenants, or the defendant for them, appealed, on the ground, that they should have been admitted as co-defendants.
    
      
      
         See Black v. Steel, 1 Bailey, 307, Johnson v. Payne, 1 Hill, 111.
    
   Harper, J.

delivered the opinion of the Court.

Treville, for the motion.

Dawson, contra.

If the case were, that the plaintiff had purchased the defendant's interest in the land, and defendant’s children were in possession along with him, I should think the motion ought to have been granted. By his purchase, plaintiff became tenant in common with the children, and one tenant has no right, by action, to dispossess the rest. If his action were defeated, it would be by his own fault, who had misconceived it. So if defendant were in possession, as natural guardian of his children. . The presiding judge, however, reports that “ the defendant was in possession, by virtue of his own interest, whatever that may be, and not as trustee for the infants.” By this we are bound. One tenant in common may maintain an action against a stranger, and recover the entire possession; and defendant, after his interest was divested by the sheriff’s sale, was a stranger to the title. The motion is therefore refused.

O’Neall, J. concurred.

Johnjson, J. absent.  