Hardee v. Weathington, 130 N.C. 91 (1902)

March 18, 1902 · Supreme Court of North Carolina

130 N.C. 91

HARDEE v. WEATHINGTON.

(Filed March 18, 1902.)

1. TENANCY IN COMMON — Adverse Possession — Ouster—Presumption.

Possession of land for a period less than twenty years under a deed executed hy one tenant in common for the entire tract does not raise a presumption of ouster of the other tenants in common. >

2. TENANCY IN COMMON — Deed—Registration—Ouster—Adverse Possession.

The registration of la deed from one tenant in common conveying the whole property does not have the effect of an ouster of the other co-tenants.

AotioN by W. A. Hardee and others against L. H. Weath-ington-and others, beard by Judge Francis D. Winston and a jury, at December (Special) Term, 1901, of tbe Superior Court of Pitt County. Erom a judgment for tbe defendants, tbe plaintiffs appealed.

Harding & Harding, for tbe plaintiffs.

Jarvis & Blow, and Fleming & Moore, for tbe defendants.

Clark, J.

This was a proceeding for partition, begun before tbe Clerk. Upon tbe allegation in tbe answer of sole seizin, tbe issues were transferred for trial at term time. Tbe Code, Sec. 256.

Tbe defendant claims under a deed 'to Samuel Corey from one tenant in common, purporting to convey tbe whole. Tbere was evidence that Corey did not go into' possession until 1891 (and evidence by defendant that be took possession prior thereto, but not prior to 1883), and that certain of plaintiffs wbo are femes covert, married prior to becoming o f age.

The ouster of one tenant in common by another will not jbe presumed from an exclusive use of the common property and appropriation of the profits for a less period than twenty years; and the result is not changed-when one who enters to whom a tenant in common has by deed attempted to convey the entire tract. Roscoe v. Lumber Co., 124 N. C., 42, citing Ward v. Farmer, 92 N. C., 93, and several other cases. Sole possession under such deed for less than twenty years does not raise a presumption that the co-tenant not joining in the deed has been evicted, for one tenant in common can not thus make the possession adverse to his co-tenant. Registration of the deed does not have the effect of an ouster. Ferguson v. Wright, 113 N. C., 531; Page v. Branch, 97 N. C., 97, 2 Am. St. Rep., 281.

The rule laid down in Nelson v. Insurance Co., 120 N.C., 302, that the possession of land under a deed, apparently good and sufficient, properly acknowledged and unimpeached, is sufficient evidence of title; and it is not error to instruct the jury, if they believe the evidence, to return a verdict for the grantee,' does not apply here, for the deed is impeached by showing that it is executed by one tenant in comm on purporting to convey the whole. Twenty years sole permanency of the profits was not shown, nor was there uncontra-dicted evidence of seven years adverse possession as to the plaintiffs. In directing the jury if they believed the evidence to answer the first three issues in favor of the defendant, there was

Error.