
    DAVID V. McCRACKEN vs. JAMES R. LOVE.
    A statement, in a bill for the sale or partition of lands, and an account of the rents and profits received by the defendant, that the defendant “has received the rents and profits and appropriated Jhem to his own use and benefit,” does not imply that the'defendant is possessed adversely to the plaintiff, and is,.therefore, no cause of demurrer.
    This qause was removed from the. Court of Equity of ■ Haywood county to this Court for argument, upon a demurrer to the bill.
    So much of the pleadings as is necessary to the under-. standing of the case is stated in the opinion of the Court.
    
      W. H. Bailey for the defendant.
    No counsel in this Court for plaintiff.
   Manly, J.

The bill ds filed to obtain from the defendant an account of the profits of certain land, which,- it is alleged, the parties hold as tenants in • common ; and to obtain a sale, ora division of the same, in accordance with the rights of the parties, which are set forth.

A general demurrer to the bill is put in, which, we are informed, is based upon a supposed allegation in the bill that the defendant is in adverse possession, claiming to be sole seized of the lands.

We have examined the bill, and do not find anything which can bear such an interpretation. The words relied upon, are these : “ Ycffir orator further showeth that the said James R. Love has‘received the rents and profits arisingjrom said lauds, and has appropriated the same to his own rise and benefit.”

This is but the common language of one tenant in common, who thinks his ootenant has pronged him, by the reception of profits, and by no means, implies a denial by the defendant of the .plaintiff’s interest in the land, and rights, to any profits.”

The defendant may plead that he is sole seized, and thus bring forward the matter which he is endeavoring here to interpose .to prevent a partition ; but the pleadings are not now in a condition to raise any such point. The demurrer must bo overruled, and the defendant required to answer.

This decision must be certified to that end.  