Wagstaff v. Smith, 17 N.C. 264, 2 Dev. Eq. 264 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 264, 2 Dev. Eq. 264

John Wagstaff v. Charles Smith.

A tenant in common, in possession, is not protected by the statute of limitation from an account to his co-tenant of the rents and profits, until three years after a partition.

This bill prayed an account of the issues and profits of land, of which the plaintiff and defendant were tenants in common. The defence by plea and answer was the statute of limitations.

Upon the proof, it turned out, that the bill was filed in the court, of Equity for Granville, in February, 1829, and a partition had been made of the land held in common in November, 1826.

Nash and Devereux for the plaintiff.

Badger for the defendant.

Henderson, Chief-Justice,

after stating the above facts, proceeded : The statue of limitations commenced running when the partition was made, for it is not the receipt of each particular item of an account which puts the statute in motion, but the cesser of the privity or connection frompvhich the accountability’ arises. So long as that relationship or privity or connection continues, the statute does not commence running. During that time there is nothing adverse, no -withholding by the one, to the prejudice of the other. ' The very act of receiving affirms the confidential relationship in law or in fact. Any other construction would destroy all confidence, and necessarily put a limit of three -years to all those confidential connections in pecuniary matters, which tend so much to facilitate the transactions of society. The defendant must come to an account.

Pee Curiam. — Decree accord inguy.