1 S.E. 625 | N.C. | 1887
(Grandy v. Bailey, 13 Ired., 221; Black v. Lindsay, Busb., 468;Ward v.Farmer,
It was conceded that if the plaintiffs were tenants in common with the defendants, they were entitled to the undivided interest claimed by them.
The plaintiffs introduced a deed from one J. H. McCluer and wife, dated 19 March, 1847. No question was made as to the title of McCluer. The case states that there was an endorsement on this deed, which was read to the jury, but it fails to state what the endorsement was. There was evidence tending to show that Dennis Branch entered under this deed, and died during the year 1847; that his widow, Rebecca, who had no deed, continued in the possession of the land till 1866, (99) when she conveyed it to A. B. Branch, a son of Dennis Branch, who afterwards conveyed it to the defendants, who were also sons of Dennis Branch. *95
There was evidence tending to show that the widow paid off the debt to one Hazelton, and claimed the land as her own and adversely, until she conveyed it, and that no dower was ever assigned to her. There was also evidence tending to show that A. B. Branch and the defendants were in the adverse possession of the land from 1866 till the commencement of this proceeding, which was 31 July, 1883.
The plaintiffs introduced deeds and other evidence, showing that they had succeeded to the interest of certain heirs at law of Dennis Branch, to the extent of the interest claimed by them.
The court, among other things, charged the jury that it being conceded that the defendant and A. B. Branch were heirs at law of Dennis Branch, their possession from 1866 would not be sufficient to divest the title of the plaintiffs, unless they could show that they entered under an independent title, and that if they entered, as they claimed to have done, under Rebecca Branch, and she had never held the land adversely to the heirs at law of Dennis Branch, but had simply remained in possession as his widow, that the plaintiffs' estate would not be divested by the possession of the defendants and A. B. Branch from 1866. But if they found that Rebecca Branch held adversely, and A. B. Branch and defendants entered and held under her, the plaintiffs would be barred.
The defendants excepted to the charge, because the court refused to instruct the jury, as requested, that seven years' adverse possession under the deed of 1866 would be sufficient to bar the plaintiffs' title, even if Rebecca had not claimed adversely to the heirs at law or their grantees. The only question for our consideration is: Did the court err in refusing to instruct the jury, that seven years adverse possession under the deed of 1866 would be sufficient to bar the plaintiffs' title, even if Rebecca Branch had not claimed adversely to the heirs at law or their grantees?
The charge of his Honor and the finding of the jury, render it unnecessary for us to consider the character of Rebecca Branch's possession — it was not adverse. Grandy v. Bailey, 13 Ired., 221.
In 1866 the plaintiffs and defendants were tenants in common, and they continued so to be, unless the possession of the defendants under the deed of Rebecca Branch barred the plaintiffs. "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 *96 claim from another who has a right, and is under no disability to assert it, it will be considered as evidence of title to 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. . . . At any time, then, during the twenty years, the tenant out of possession had a right, and might have enforced it by an action." Black v. Lindsay, Busb., 468.
One tenant in common cannot make his possession adverse to his cotenant. He is presumed to hold by his rightful title, and it will take twenty years adverse possession to bar the cotenant, and a deed by a cotenant to a stranger, though it purport to convey the entire estate, has no other effect than to invest the vendee with the rights of the vendor, and does not change the relation of cotenant, which had (101) subsisted between the vendor and the cotenant. This rule extends to the purchaser of the interest of a tenant in common at execution sale, and to the vendee of such purchaser, as was decided in Wardv. Farmer,
Assuming that the period of ten years, in the case of Day v. Howard, was inadvertently fixed, as is indicated by Justice Bynum and Justice Ashe, it may be stated as well settled in this State, that no possession for a period less than twenty years will amount to an ouster of one cotenant by another cotenant, or by any one deriving title under another cotenant. There must be something more than mere possession for a less period than twenty years, to constitute an ouster. In Thomas v. Garvan, 4 Dev., 223,Gaston, J., says: "When the law prescribes no specific bar from length of time, twenty years have been regarded in this country as constituting a legal presumption of such facts as will sanction the possession and protect the possessor," and this has been followed uniformly, unless Day v. Howard
constitutes an exception. Cloud v. Webb, 4 Dev., 290; Meredith v. Andres, 7 Ired., 5; Black v. Lindsay, Busb., 467; Halford v. Tetherow, 2 Jones, 393;Linker v. Benson,
The length of time necessary to raise the presumption of ouster, was not the point in Day v. Howard, and the principle enunciated, and the reasoning of the Chief Justice in that case, are in harmony with these decisions.
The case of Baird v. Baird, 1 D. B. Eq., 524, though seemingly in conflict with the position here taken, will be found, upon a close examination of the elaborate and exhaustive opinion of Chief Justice Ruffin, to have rested upon a state of facts that amounted to an actual ouster and disseizin, and not upon the simple fact that seven (103) years adverse possession under color of title, but upon the character of the possession which, in that case, was attended by circumstances that constitute an actual ouster.
There is no error. The judgment of the court below is affirmed.
No error. Affirmed.
Cited: Hicks v. Bullock,
