Den Ex Dem. Black v. Lindsay, 44 N.C. 467

Den Ex Dem. Black v. Lindsay

44 N.C. 467 | N.C. | 1853

Upon this state of facts the defendant's counsel insisted that the plaintiff's lessors could not recover; but his Honor instructed the jury, that if the defendant entered into the possession of the land during the life of her mother by her permission, and as her tenant, and continued thereon as such until her death in 1826 or 1827, and without abandoning the same still continued thereon until this ejectment was brought, her possession, until an actual or presumed ouster of her cotenants, would enure to the benefit of all of the heirs-at-law of her mother, and there being more than thirty years continued possession of the land, the law presumed a grant to the heirs-at-law of Jane Duncan. And his Honor further charged the jury, that in the absence of any claim (468) against the defendant for rent or demand by the lessors to be let into possession with her, or any actual ouster of them by the defendant, who, from the first supposed state of facts would be presumed to hold the possession for all the tenants in common, the law would presume an ouster of the lessors of plaintiff at the expiration of twenty years from the death of Mrs. Duncan, her mother, when her possession would become adverse to them — since which time there had not sufficient time elapsed to bar the recovery of the plaintiff's lessors.

Under which instructions the jury found for the lessors of the plaintiff, and judgment having been rendered on the verdict, the defendant appealed to the Supreme Court. The possession of one tenant in common is, in law, the possession of all his cotenants, because they claim by one common right. When, however, that possession has been continued for a great number of years, without any claim from another who has a right, and is under no disability to assert it, it will be considered evidence of title to *428 such sole possession; and where it has so continued for twenty years, the law raises a presumption that it is rightful, and will protect it. This it will do, as well from public policy, to prevent stale demands, as to protect possessors from the loss of evidence from lapse of time. Thomaset ux. v. Garvan, 15 N.C. 223, and Cloud v. Webb, ibid., 290. Possession, then, for twenty years under the above circumstances, will amount to a disseisin or ouster of the cotenant, and furnishes a legal presumption of the fact necessary to uphold an exclusive possession — as that the possession was adverse in its commencement, and tolls the entry of the tenant not in possession. It was said at the bar, that the law cannot give a right and take it away at the same moment. This objection is more specious than sound. A tenant in common out of possession, can, at any time, take possession with him in sole possession, or, if (469) the latter will not permit him so to do, and keeps him out, it will be a disseisin, and give a right of action. But if he suffer the sole possession to run on without entry or demand for twenty years, the law says to him, by your negligence you have lost your right of entry, without which you cannot support an action of ejectment. At any time, then, during the twenty years, the tenant out of possession had a right, and might have enforced it by an action. The title of the lessors of the plaintiff, and of the defendant united in Mrs. Jane Duncan, their mother, who died in 1826 or 1827. Before that time, the defendant went into sole possession of the premises in question under her who was seized in fee, and continued in such possession up to the time this action was brought, without any demand of payment or rent by the lessors of the plaintiff, or to be let into possession. The action was brough in October, 1849. The defendant's sole possession, from the death of her mother, had then continued twenty-three years; the lessors of the plaintiff had lost their right of entry, and could not maintain their action; and the jury ought to have been so instructed. The act of 1715 has no application to the case.

PER CURIAM. Judgment reversed, and venire de novo awarded.

Cited: Covington v. Stewart, 77 N.C. 150; Pope v. Mathis, 83 N.C. 169;Page v. Branch, 97 N.C. 100; Dobbins v. Dobbins, 141 N.C. 216;Rhea v. Craig, ibid., 611; Lester v. Harward, 173 N.C. 84; Battle v.Mercer, 187 N.C. 448; Crews v. Crews, 192 N.C. 686. *429