Opinion
31305.
DECIDED JULY 10, 1946.
Certiorari; from DeKalb Superior Court — Judge Davis. March 29, 1946.
Charles W. Anderson, for plaintiff.
Frank A. Bowers, for defendant.
1. While, as a general rule, one joint tenant can not maintain trover against a cotenant, for the reason that the possession of one is the possession of both, yet he may do so when the tenant in possession sets up an adverse claim to the whole property to the exclusion of the cotenant.
2. On a motion to nonsuit, the evidence should be construed in its most favorable light for the plaintiff, and the motion will never be granted when there is any evidence tending to sustain the action.
( a) Under the evidence in this case, the jury would have been authorized to find in favor of the plaintiff for the value of her interest in the automobile.
3. The trial judge erred in awarding a nonsuit, and the judge of the superior court erred in overruling the plaintiff's petition for certiorari.
DECIDED JULY 10, 1946.
Ruth Yeager sued Doris Weeks in trover in the Civil Court of Fulton County. Her petition as amended alleged that she and the defendant had jointly purchased a certain automobile, and that the defendant had appropriated it to her own use and had refused the plaintiff's demand to pay her the value of her interest therein, amounting to $119.27, besides interest. The defendant answered, admitting that she had refused the demand of the plaintiff to deliver the automobile to her, and setting out that the plaintiff had no title or right of possession in or to said automobile.
On the trial, the plaintiff testified: That she and the defendant had purchased the automobile in July, 1944, paying $170 in cash and giving their note for the balance due; that they had agreed to own and to use the automobile together in going to and from work and for pleasure; that they had used the automobile together for about three months and until the defendant carried it away; that the automobile had been taken care of and was in good condition at the time the defendant converted it to her own use; that the plaintiff paid one-half of the initial payment of $170 and one-half of two subsequent payments of $34.27, which made $119.27 paid by her; and that this was her interest in the automobile. The original conditional-sales contract dated July 6, 1944, which recited that the purchase-price of the automobile was $495, the note for the unpaid portion of the purchase-price, and the recording certificate, each of which was signed by both the plaintiff and the defendant, were placed in evidence. It was admitted in court by the parties that the purchase-price of the automobile had been fully paid. There was other evidence which is not material to the questions here raised.
The trial judge awarded a nonsuit. The exception is to the judgment of the superior court overruling the plaintiff's petition for certiorari.
1. While, as a general rule, one joint tenant can not maintain trover against a cotenant, for the reason that the possession of one is the possession of both, yet he may do so when, as in this case, the tenant in possession sets up an adverse claim to the whole property to the exclusion of the cotenant. Code, § 85-1005; Roddy v. Cox, 29 Ga. 298, 309 (74 Am. D. 64). Also see Hall v. Page, 4 Ga. 428 (48 Am. D. 235), and citations; King v. Neel, 98 Ga. 438 ( 25 S.E. 513, 58 Am. St. R. 311); Hale v. Eberhardt, 54 Ga. App. 395 ( 188 S.E. 53); Jett v. Securities Investment Co., 68 Ga. App. 454, 459 ( 23 S.E.2d, 265). In the present case, the defendant alleged in her answer that the automobile belonged to her, and that the plaintiff did not have or own any interest therein or have the right of possession thereto. The pleadings brought this case within the exception to the general rule, as above set out, and answers the contention of the defendant in error that the plaintiff was not authorized to maintain the present action.
2. While a nonsuit shall be granted if, "admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover" (Code, § 110-310), however, a motion to nonsuit is in the nature of a general demurrer to the evidence, and will never be granted when there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff. Hawkins v. National Surety Corp., 63 Ga. App. 367 ( 11 S.E.2d 250), and citations; Stenger v. Mitchell, 70 Ga. App. 563, 565 ( 28 S.E.2d 885). On a motion for a nonsuit, the evidence should be construed in its most favorable light for the plaintiff. The jury was authorized to find in this case that the plaintiff and the defendant had purchased the automobile only three months before the defendant converted it to her own use, to the exclusion of the plaintiff. Taking into consideration the cost of the automobile, the length of time and manner in which it was maintained and used by the parties, the condition it was in at the time it was converted by the defendant, and the portion of the purchase-price paid by the plaintiff, all of which appeared from the evidence in this case, we think that the jury would have been authorized to find in favor of the plaintiff for the value of her interest in the automobile. In this connection, see Atlanta Baggage Cab Co. v. Mizo, 4 Ga. App. 407 ( 61 S.E. 844), and citations; Nashville, C. St. L. Ry. v. Bass, 32 Ga. App. 457 ( 123 S.E. 729).
3. It follows, therefore, that the trial judge erred in awarding a nonsuit, and that the judge of the superior court erred in overruling the plaintiff's petition for certiorari.
Judgment reversed. Felton and Parker, JJ., concur.