Rhea v. Craig.

*609 Walker, J., after stating tbe case: We do not think tbis ease presents any unusual, and certainly not any extraordinary features. It can be decided upon correct principles if we will but bear in mind tbe nature of an estate in common and its ordinary incidents. Tenants in common bold by unity of possession and are deemed to be seized per my and not per tout. They may bold by several and distinct titles, or by title derived at one and tbe same time by tbe same deed or descent. But however tbe estate is created, whether by act of tbe party, or by descent or act of tbe law, they properly take by distinct moieties and are seized of separate and distinct freeholds, which is a leading characteristic of this relation. 4 Kent (13 Ed.), 367. One of tbe incidents of the estate is the right of each of the tenants to compel partition which was given by the statutes of Henry VIII and William III, though it did not exist at common law, according to Blackstone. 2. Blk., 194. Partition at common law might be made by tenants in common by parol, with a feoffment or any written instrument evidencing the partition. But if by parol, it must have been with, livery of seizin, and this is because the tenants have several freeholds. Anders v. Anders, 13 N. C., 529. “If two tenants in common be, and they make partition by parol and execute the same in severalty by livery, this is good and sufficient in law.” Coke, 139a; 1 Gr. Cruise, Title 20, sec. 30. But in consequence of the Statute of Frauds in England, 29 Charles II, and in this State, Act of 1715, Revisal, sec. 976, no legal partition can now be made between tenants in common without deed or writing (McPherson v. Seguine, 14 N. C., 153; Medlin v. Steele, 75 N. C., 154), though it is said that an agreement in writing to make partition will have the same effect, in equity, as an actual partition at law. 1 Gr. Cruise, supra; Eaton Equity, 606. It has also been decided in some of the States, following the English rule, that where the partition has been made by parol agreement *610 of the tenants and each has taken possession of his part or share and occupied it in severalty for a less period than is required to ripen title by adverse possession under the statute of limitations, a court of equity will recognize and enforce the agreement and decree it to be valid and effectual for the purpose "of concluding the right of the parties, as between each other, tq hold their respective parts in severalty. Goodhue v. Barnwell, Rice Eq., 198; Ebert v. Wood, 1 Binney, 218; Wood v. Fleet, 36 N. Y., 499. But those decisions, and many others to be found in the books, are based upon the doctrine of part performance which is not recognized by us as sufficient to prevent the operation of the statute of frauds. Ellis v. Ellis, 16 N. C., 341; Allen v. Chambers, 39 N. C., 125; Barnes v. Teague, 54 N. C., 277. So that the judgment of the court below, if correct, must be sustained upon some other principle. It has been generally held, we believe, that where land has been divided among tenants in common by parol and the tenants have gone into possession of their several and respective shares in accordance with the agreement and have held possession of the same under known and visible boundaries, consisting of lines plainly marked on the ground at the time of the partition, and such possession has continued openly, notoriously and adversely for a sufficient time, under the statute of limitations to bar a right of entry or of action, each of the tenants recognizing the right of the others so to hold and claiming the right to hold and possess the share allotted to him in his own right and in severalty and to exclude his co-tenants from any right or participation therein, the possession thus acquired and held will vest a good and perfect title to such share in him. Hazen v. Barnett, 50 Mo., 506; Slice v. Derrick, 2 Rich., 627; Gregg v. Blackmore, 10 Watts., 192; Haughabaugh v. Honald, 53 S. C. (3 Brev.), 98; Tomlin v. Hilyard, 43 Ill., 300. There does not seem to be any case in our reports presenting the identi *611 cal question we have here. In Anders v. Anders, supra, the question was not decided and could not have been, as the title descended to the tenants in common from their father in 1814 and the case was heard in this court in 1830, so that there had not, at the latter date, been a sufficient length of possession by the tenants of their several portions to bar each other’s rights. There were other circumstances in the case which prevent it from being an authority either way. We do not see why our case is not governed by the general principle long established in this court, that where there has been an exclusive possession by one tenant of the common property for twenty years without any demand or claim for an account of rents, issues or profits from his co-tenant, and without any acknowledgment on his part of title in said co-tenant, the law in such a case raises a presumption that the sole possession was rightful and will protect it, and where the tenant out of possession brings ejectment, his entry will be considered as tolled and his right of action will be barred. Cloud v. Webb, 15 N. C., 290; Black v. Lindsay, 44 N. C., 467; Thomas v. Garvan, 15 N. C., 223; Covington v. Stewart, 77 N. C., 148; Neely v. Neely, 79 N. C., 478; Whitaker v. Jenkins, 138 N. C., 476; Bullin v. Hancock, 138 N. C., 198, and Dobbins v. Dobbins, at this term, where the cases are collected and reviewed. If the parol partition left the tenants in common with, undivided interests in the shares allotted to each of them, still it must be conceded that if they severally took possession, each of his or her part, and have continued in the sole and exclusive possession 'ever since the allotment was made without the making of any claim or demand for rents, issues or profits by any of them upon the others, but recognizing each other’s possession to be of right and hostile, the law will presume an actual ouster and a supervening adverse possession as much so as in the other cases where the possession was of the whole instead, as here, of a part only. When there is the same reason there *612 must be the same law. Indeed, in tbis case, the principle of the authorities cited should more strongly apply, for when there is possession of the whole it is more consistent with the rule that the possessor is presumed to hold for the benefit of his co-tenant, as. well as for his own, than when the possession is only of a part allotted under a division of the land, by consent and agreement of all, for, though, in the latter case the tenants in the eye of the law still own by moieties in that part, the intent of the possessor to hold for himself to the exclusion of his fellow is, in fact, the more manifest. The technical relation is not altered, it is true, in the one case any more than in the other, until the bar takes place by sufficient length of possession, but the circumstances of the possession and the attitude of the parties, where there has been an allotment followed by possession in conformity therewith, impart greater force and conclusiveness to the presumption by which the entry of the co-tenant is tolled. It is more in the nature of an actual assertion of right to the sole possession, in denial of all right in the other tenant, and is therefore really adverse, though not theoretically so, as the law, until a certain time elapses, regards the estate in the part so held as still undivided and the possession as promiscuous and not several, just as it does in the other case where the presumption arises from the sole receipt of the rents and profits and the inaction or supineness of the tenant out of possession. This brings us to consider the charge of the court and the refusal to give the instructions requested. We think the court instructed the jury fully as to what facts were necessary to be found by them in order to bar the plaintiff’s recovery. A charge could not be more explicit in that respect. The exception that there was no legal or competent evidence upon which to base the separate instructions is clearly not tenable, as the court did not declare that the parol partition, even when followed by possession of the several parts of the *613 land for a less period than twenty years, was sufficient, and therefore the objection that the agreement was forbidden by the statute of frauds and the oral evidence of it was incompetent falls to thé ground. It was necessary to show the facts constituting the possession, the manner of acquiring it and the length of it, in order to raise the presumption of an ouster or of a deed and thus to defeat the plaintiffs claim to partition. The mere circumstance that the defense originated in a parol agreement did not exclude evidence of the possession under it, nor even evidence of the agreement itself and its attendant circumstances. The right to prove these facts rests upon a principle of law, as we have shown, quite distinct from any arising out of the statute of frauds. Nor do we think the jury were misled as to what their verdict should be if they should find that the defendants had not, by the greater weight of the evidence, made out their case. The court had properly placed the burden of the issues upon them and the jury must have understood from a consideration of the whole charge that, in the event supposed, they should answer the issue in favor of the plaintiff. There was ample evidence as to the marking of the lines. The plaintiffs first prayer for instructions should not have been given, as it was misleading. It did not direct the minds of the jury to the true issues involved and was too narrow to be given without explanation. The instruction incorporated in the prayer omitted the important element a? to the length of the possession and was therefore incomplete. It was not the contention of the defendants that the possession of a part of the land by one tenant in common was not presumed to be in the interest of all, but whether the possession had been so long continued as to bar the right to a partition. The instruction requested in the second prayer is equally erroneous as that contained in the first, for it does not state whether the alleged possession within less than twenty years of the part allotted to one of the eo- *614 tenants by another of them, was adverse or merely by permission of the former, nor does it state what was the nature of the possession or how long it lasted, so as to show that it was of a kind which would break the continuity of the possession relied on to bar the plaintiff’s right to partition. The gist of the whole defense is that the right and title of the tenants in common to their shares in severalty have accrued by reason of the exclusive occupation by each of the tenants of his own part, each claiming, as his alone, the part agreed to be his, and the others not disputing that claim, and each taking, as his alone, the product of his own part, except where by his permission others may have been allowed to enjoy it, but on the faith of the agreement. Unless we could see that the fact upon which the proposed instruction is based would, if found by the jury, prevent the estate in common from being turned into one in severalty by an otherwise exclusive and continuous possession for twenty years, we cannot say that the judge below erred in refusing to give the instruction. It is not clear that the possession, as stated in the instruction, was not taken under claim of right or was not temporary and permissive. Without a more definite statement of the nature of the facts relied on, the instruction requested would have tended more to confuse than to enlighten the jury. We find no error in the rulings and judgment of the court. No Error.