after stating the facts: 1. The counsel for defendant say “ that possession of defendant is not enough, unless he admits the tenancy in common; and the allegation impliedly admits that defendant resists their claim.” So *246far from this being so, the demurrer admits the facts alleged in the petition, and it distinctly alleged that the petitioners and the defendant are tenants in common, and “that said John Buie, the defendant, is in possession of said lands, claiming title to Catherine McDonald's share therein under the aforesaid deed, as your petitioners are informed and believe.”
It is well settled that where there is no actual ouster, the possession of one tenant in common is the possession of all the tenants in common, and this continues to be so until, from the lapse of time, the sole possession becomes evidence of title to the sole enjoyment. Here no ouster is admitted. It is in no way admitted, directly or indirectly, that the defendant claims to be sole seized, or that he claims any other than Catherine McDonald’s share in said land. It is admitted that he is in possession. His possession is the possession of his co-tenants, and the first ground of demurrer cannot be sustained.
2. It would have been sufficient to allege, as is alleged and admitted by demurrer, that the petitioners and defendant were tenants in common and in possession of the land mentioned, and the necessity of a sale for partition, and the useless and unnecessary allegations in regard to the relationship of the parties were plainly intended only to show from and through whom title to the land was derived, and that all the parties to whom the petitioners and defendant’s assignor were thus related, and through whom they claim, are dead. If they are all dead intestate, and without lineal descendants, and petitioners and the defendant’s assignor are the next of kin and heirs at law of the survivor of them, it is sufficient, for the purposes of this petition, and, fairly construed, it only meant, in this respect, to allege a failure of lineal descendants. The allegations were redundant and unnecessary, and might have been omitted or stricken out. Best v. Clyde, 86 N. C., 4; Thames v. Jones, 97 N. C., 121.
*247It would make nonsense of the petition to suppose that it intended to allege that the petitioners and Catherine McDonald were the heirs at law or next of kin of Duncan Bann Buie at the time of his death, leaving children, or that they were the heirs at law of any one of his children, so long as another was living, and while the petition might have been more accurate and more concise, as for the matter of that, in alleging the failure of lineal descendants, utile per inutile non vitiatur, and the defendant can clearly see from the petition what is demanded by the petitioners, and it is sufficient to inform him of everything necessary to enable him to answer intelligently. If he denies the petitioners’ title, or if he claims to be sole seized, or has any other defence, he can *so answer, and the case can be tried upon its merits. The second ground of demurrer cannot be sustained.
No error.