Tharpe v. Holcomb, 126 N.C. 365 (1900)

April 17, 1900 · Supreme Court of North Carolina

126 N.C. 365

W. W. THARPE v. J. HOLCOMB.

(Decided April 17, 1900.)

Tenants in Common — -Quiet Possession — Presumption, Hoto Rebutted — Adverse Possession— Duration — Statute of Lmvitation, Section HP of The Code.

1. The possession of one tenant in common is presumed to be the possession of all.

2. A quiet, undisturbed exclusive possession for twenty years by one tenant in common is necessary to bar his co-tenants.

3. An adverse possession by one tenant in common is indicated by a hostile attitude apparent' to the Court or jury, from which it may be seen by some act done that the intent to hold alone is manifested to the co-tenants, as if they attempt to assert their claim, as to enter, or to demand an account of rents, etc., which is resisted by the occupant, his possession becomes adverse, and the statute (Code, sec. 141), begins to run, and if continued seven years, will ripen the title.

Civil ActioN for possession of land, tried before Timber-lake, J., at February Term, 1900, of Iredell Superior Court.

Tlie land bad belonged to Eleana Elliott, who in 1873, devised it to his wife for life. At her death in November, 1882, Angoline Privett, one of the daughter's of Eleana Elliott, and wife of Cader Privett, entered into possession, claiming the land as her own under the will of her* father until her death in June', 1894. She and her husband had mortgaged the land in October, 1887, to J. S. Ramsey, to secure a debt — which mortgage "was foreclosed by sale and deed made to the defendant; Holcomb, the purchaser, who took possession at her death in 1894.

The plaintiff claimed the land as purchaser at commissioner’s sale ordered in a special proceeding instituted by’ heirs-at-law of Eleana Elliott for partition by sale, his deed being dated December 5, 1898.

The issues were:

1. Is the plaintiff the owner and entitled to this land as alleged ?

2. Is the defendant in the wrongful possession of the land described in the complaint?

His Honor directed the jury, if they believed the evidence, to find the issues in the affirmative — which, they did. The •defendant excepted. Judgment for plaintiff. ’ Appeal by defendant.

Messrs. Armfield & Turner, for appellant..

Mr. L. G. Caldwell, contra.

Faircloth, C. J.

This is an action of ejectment, and the plaintiff and defendant are .tenants in common of the land in controversy. The only material question to consider is whether the defendant has title by adverse possession under .-color of title by force of the seven-year statute', Code, sec. 141.

It is conceded that the defendant and those under whom he •claims have been in continuous, possession of the premises for more than seven- years under' color. Was thei possession ■adverse ?

The possession of one tenant in common is presumed to be the possession of all the tenants.

An adverse possession for twenty years by one tenant in ■common is necessary to bar his co-tenants. Hicks v. Bullock, 96 N. C., 164.

The evidence is that “Angeline (defendant’s vendor) entered into possession of the land, claiming’ it as her own ■under the will of Eleana. Elliott, * * * claiming it ■adversely to all others, claiming it as her own under said will.” This- proof shows only quiet, undisturbed possession, ■and that is not inconsistent with a holding for all the tenants in common. It does not indicate a hostile attitude of the occupant towards bis co-tenants as contemplated by tire statute, Code, sec. 141. To that end, there must be some act done between the parties from which the jury or Court can see that a hostile relation exists — that tire defendant’s intent to hold alone is manifested to the co-tenants. Then the statute begins to run. If the co-tenants attempt to'assert their claim, as to enter, or to demand an account for rents, etc., which is resisted by tire occupant, then his possession becomes adverse, and, if it continue for seven years, his title will ripen against his co-tenants. Breeden v. McLaurin, 98 N. C., 307. This requirement is not met by the facts in the present case, and it follows that there is error.

The judgment might be reformed here if the record furnished tire necessary information, but it does not; and a new trial is necessary in order that the proper parties may be made, and their rights and interests ascertained and declared.

New trial.