Jeter v. . Davis

*460 Shepherd, J.: We concur with his Honor in his ruling that, taking the whole testimony, the defendant J. W. Davis had not sustained his plea of sole seizen of the land in controversy. In 1874 Josiah Davis conveyed the land to his brother Stephen, in trust for the use and support of his wife and children, and after the death of the wife it was tobe equally divided among them. The appellant, being one of the children, was an equitable tenant in common with his brothers and sisters, and, although he was in possession and took a deed to himself from the same grantor in 1877, charged with different trusts, and conceding that he was not estopped to claim under such deed, still his possession, being less than twenty years, would not have the effect of barring his co-tenants. However uncertain the decisions may have been, this point may now be considered as settled. Page v. Branch, 97 N. C., 97; Gilchrist v. Middleton, 107 N. C., 663, and cases cited. It is urged that the trustee is barred, and therefore the estate of the plaintiffs must share the same fate. The defendant is presumed to have entered under the deed of 1874, as an equitable tenant in common. This being so, his possession was the possession of the trustee, and “there could be no adverse claim or possession during the continuance of the relation” (2 Perry Trusts, 863); “for a cestui que trust in actual possession is the tenant at will of the trustee, and the statute of limitations does not apply.” Wood Lim., 203; 2 Lewin, Trusts, 881; 2 Perry, Trusts, 863. Holding, as he does, under the trustee he cannot destroy that relation by setting up an adverse possession under a subsequent deed from the same grantor, and even if he could do so, his disclaiming conduct must be of the same character as would create an adverse possession against a co-tenant in common. Buswell on Adverse Possession, § 342. Affirmed.