Stallings v. . Keeter

CoNNOR, J. There is error in the judgment dismissing this action. At the death of Eldridge Stallings, intestate in 1890, the land described in the complaint descended to his three sons and his daughter, who, as his heirs at law, thus became the owners of said land as tenants in common. At the date of the commencement of this action, the plaintiffs were heirs at law of Eldridge Stallings, deceased, then living, or representatives of such of his heirs at law as had died since his death. The plaintiffs are therefore the owners of the land described in the complaint as tenants in common, unless the defendant has acquired title to same by possession under the statute, O. S., 430, or unless the defendant has acquired title to the interest in said land of J. H. Stallings, under the deed of the said J. II. Stallings to the defendant. The evidence for the plaintiffs tended to show that the possession of J. H. Stallings from 1890 to 1935 was not adverse to his cotenants, but was by virtue of an agreement between him and said cotenants. If the jury shall so find, the possession of the defendant and those under whom he claims has not been sufficient to ripen title in him to said land, although such possession has been for more than twenty years. Bradford v. Bank, 182 N. C., 225, 108 S. E., 750; Tharpe v. Holcombe. 126 N. C., 365, 35 S. E., 608; Conkey v. Lumber Co., 126 N. C., 499, 36 S. E., 42. “An adverse possession for twenty years by one tenant in common is necessary to bar his cotenants.” Hicks v. Bullock, 96 N. C., 164. The evidence for the plaintiffs further tended to show that at the date of the execution of his deed to the defendant, J. H. Stallings was without mental capacity to execute a deed. *301 If the jury shall so find, the deed from I. H. Stallings to the defendant is void, and defendant acquired no title to said land or to any interest therein by virtue of said deed. The judgment is reversed. The plaintiffs are entitled to a new trial. It is so ordered. New trial.