Page v. . Branch

Davis, J., (after stating the facts). The only question for our consideration is: Did the Court err in refusing to instruct the jury, that seven years’ adverse possession under the deed of 1866 would be sufficient to bar the plaintiffs’ title, even if Rebecca Branch had not claimed adversely to the heirs at laws or their grantees? The charge of his Honor and the finding of the jury, render it unnecessarjr for us to consider the character of Rebecca Branch’s possession — -it was not adverse. Grandy v. Bailey, 13 Ired., 221. In 1866, the plaintiffs and defendants were tenants in common, and they continued so to be, unless the possession of the defendants under the deed of Rebecca Branch barred the plaintiffs. “ The possession of one tenant in common is, in law, the possession of all his co-tenants, because they claim by one common right. When, however, that possession has been continued for a great number of years, without any claim from another who has a right, and is under no disability to assert it, it will be considered as evidence of title to such sole possession; and where it has so continued for twenty years, the law raises a presumption that it is rightful and will protect it. * * * At any time, then, during the twenty years, the tenant out of possession had a right, and might have enforced it by an action.” Black v. Lindsay, Bus., 468. One tenant in common cannot make his possession adverse to his co-tenant. He is presumed to hold by his rightful title, and it will take twenty years’ adverse possession to bar the co-tenant, and a deed by a co-tenant to a stranger, though it purport to convey the entire estate, has no other effect than to invest the vendee with the rights of the vendor, and does *101 not change the relation of co-tenant, which had subsisted between the vendor and the co-tenant. This rule extends to the purchaser of the interest of a tenant in common at execution sale, and to the vendee of such purchaser, as was decided in Ward v. Farmer, 92 N. C., 92. In that case, the interest of W. W. Ward, one of the co-tenants, had been purchased at execution sale by one Day, and Day by deed professing to convey the whole of the land, sold to the defendants, Parmer and Southerland, who entered into possession on the 1st of January, 1873, and occupied and used the same to November, 3883, claiming it as their own, under their deed from Day, no one else being in possession; clearing and otherwise improving it, occupying it by marked and visible lines publicly, and paying the taxes. The Court below instructed the jury, that no possession short of twenty years, except after an actual ouster, would be adverse as against tenants in common, and this was sustained. Ashe, J., in the opinion in Ward v. Farmer, in referring to Day v. Howard, 73 N. C., 4, in which the same principle is held, calls attention to the fact that Chief Justice PeabsoN, who delivered the opinion in Day v. Howard, fixed the time at ten years, instead of twenty, and says, “ it will be observed, that this was a mere obiter dictum, and the learned Chief Justice only says he is inclined to the opinion and expresses none, because that state of facts is not presented.” And ByNum, J., in Covington v. Stewart, 77 N. C., 151, says: “ 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 common himself, or by him a part of the time and until his death, and then continued by his heirs for the residue of the twenty years,” and referring to Day v. Howard, adds that his Honor who tried the case of Covington v. Stewart, in the Superior Court, “ was probably thrown from his guard by a suggestion made *102 by the Chief Justice in delivering the opinion in the latter case, that where a 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 rise in that case. * * 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,” and refers to the statute. Assuming'that the period of ten years, in the case of Day v. Howard, was inadvertently fixed, as is indicated by Justice Bynum and Justice Ashe, it may be stated as well settled in this State, that no possession for a period less than twenty years will amount to an ouster of one co-tenant by another co-tenant, or by any one deriving title under another co-tenant. There must be something more than mere possession for a less period than twenty years, to constitute an ouster. In Thomas v. Garvan, 4 Dev., 223, Gaston, J., says: “ When "the law prescribes no specific bar from length of time, twenty years have been regarded in this country as constituting a legal presumption of such facts as will sanction the possession and protect the possessor,” and this has been followed uniformly, unless Day v. Howard constitutes an exception. Cloud v. Webb, 4 Dev., 290; Meredith v. Andres, 7 Ired., 5; Black v. Lindsay, Bus., 467; Halford v. Tetherow, 2 Jones, 393; Linker v. Benson, 67 N. C., 150; Covington v. Stewart, 77 N. C., 151; Caldwell v. Neely, 81 N. C., 114. The length of time necessary to raise the presumption of ouster, was not the point in Day v. Howard, and the principle enunciated, and the reasoning of the Chief Justice in that case, are in harmony with these decisions. The case of Baird v. Baird, 1 D. & B. Eq., 524, though seemingly in conflict with the position here taken, will be found, upon a close examination of the elaborate and exhaustive opinion of Chief Justice Ruffin, to have rested upon a *103 state of facts that amounted to an actual ouster and disseizin, and not upon the simple fact of seven years’ adverse possession under color of title, but upon the character of the possession which,in that case, was attended by circumstances that constitute an actual ouster. There is no error. The judgment of the Court below is affirmed. No error. Affirmed.