Covington v. . Stewart

ByNüm, J. The possession of one tenant in common is the possession in law of all; but if one have the sole possesion for twenty years without any acknowledgment on his part of title in his co-tenant, and without any demand or claim on the part of such co-tenant to rents, profits or possession, he being under no disability during the time, the law in such cases raises a presumption that such sole possession is rightful and will protect it. In such cases where the tenant who has beeu out of possession brings ejectment, it has been held that his entry is tolled and that he cannot recover. Black v. Lindsay, Busb. 467; Thomas v. Garvan, 4 Dev. 223; Cloud v. Webb, 4 Dev. 290. This legal effect is given to the lapse of time from public policy, to prevent stale demands and to protect the tenant in possession from the loss of evidence from length of time. Such, in substance, was the purport of the charge of the Judge below in the first part of his instructions to the jury, and if he had stopped there, there would have been no error in his instructions. But he afterwards proceeded to charge that if John P. Covington had possession of the house and lot, claiming them as his own, and exercising exclusive rights of ownership, so that W. L. Covington was advised,of it and prevented from making an entry thereon, for seven years, he being under no disability, and the heirs of John P. Covington continued the possession for three years more after the death of their father and W. L. Covington, then the jury must find that the defendants were sole seized at the beginning of the action. This was error. It has never been held in North Carolina that a less period than twenty years’ adverse possession by one tenant in common will raise the presumption of ouster and sole seizin; .and this, whether the possession was held by the tenant in *151 ,.common liimself, or by Mm a part of the time and until his Meath; and then continued by his heirs for the residue of the twenty years. See the cases above cited and those therein referred to; also Day v. Howard, 73 N. C. 1. His Honor was probably thrown from his guard by a suggestion made by the Chief Justioe in delivering the opinion in the latter case; that when the tenant in common conveys •to a third person, an adverse possession of ten years by the. -purchaser,- would probably give him a good title by the presumption of an actual ouster. The point did not arise in that case and was left an open question, and it does not arise ‘here, because there was no conveyance to a third party by •the tenant in possession. But the possession of twenty years which raises a presumption of title, as the law has been .heretofore administered, has now the force and effect of an .¿actual title in fee by the provisions of C. C. P. § 23, of Title IN, “Limitation of Actions’' viz : No action for the recovery of real property or the possession thereof, or the issues and profits thereof, shall be maintained when the person in possession thereof, or the defendant in the action, or those under whom he claims shall have possession of such real property under known and visible lines and boundaries, adversely to all other persons for twenty years, and such pos,-session so held. shall give a title in fee in such property ..against- all persons not under disability; and by C. C. P. § 22, no action for the recovery of such real property can be .maintained unless it appears that the plaintiff, &c., was .-seized or possessed of the premises in question within twenty years before commencing his action. These salutary provisions however do not affect the present action, as by C. C. P. § 16, they do not extend to actions already commenced or ¡rights of actions already áccrued at the ratification of the -'■Code. ■ As there must be a new trial for the error in His Honor’s -instructions to the jury, it is unnecessary to examine the *152 questions of evidence raised on the trial, but we do not now' see any error in His Honor’s ruling upon them. There is error. Per Curiam. Venire de nova-.