Withrow v. . Biggerstaff

Ashe, J. It is conceded in the argument of this case that the plaintiff and defendants are tenants in common of •the land in controversy. . The possession of one tenant in common is the possession of the other. And it is therefore held that one tenant in common cannot sue another unless there is an actual ouster. By an actual ouster is not meant the expulsion from or keeping out of the possession by real force, but it may be inferred from circumstances; which circumstances are matter of evidence to be left to the jury, as for instance, the entry of one tenant claiming the land as Ms own and continuing in the sole possession for twenty years or more, without any entry, claim, or assertion of right to any part of it by his co-tenant. Cloud v. Webb, 4 Dev., 290; Thomas v. Garvan, Id., 223; Covingtons. Stewart, 77 N. C., 148. So, a demand to be let into possession and refusal or any hindrance by the one tenant in possession to the entry of the other. But that one tenant in common may maintain an action against another, an ouster must either be proved or admitted by the pleadings. Halford v. Tetherow, 2 Jones, 393. The defendant in our case says the action cannot be sustained because the plaintiff has made no demand to be let into possession and there is no evidence of an ouster. The plaintiff replies, it is true he has made no demand for the possession and has proved no actual ouster, but defendant has made that unnecessary by admitting an *85 actual ouster in his pleading, which answers his purpose in this action. According to the practice under our former system, when one tenant in common sued another for possession of land held in common, if he meant to dispute the title of the plaintiff’s lessor, he was required as in other cases to enter into the common rule and confess lease, entry and ouster; but when he did not dispute the title of the lessor of plaintiff as his co-tenant, he might obtain upon affidavit leave of the court to enter specially into the common rule, stipulating to confess lease and entry only, not ouster, unless an actual ouster should be proved on the trial. Adamson Ejectment, 56; Hargrove v. Powell, 2 Dev. & Bat., 97. If the defendant enter into the special rule, then it was incumbent on the plaintiff before he could effect a recovery to prove on the trial an actual ouster, or circumstances from which one might be presumed. But if he enter into the general consent rule, then he confessed the ouster, and -it was unnecessary for the plaintiff to prove it; it was admitted by the pleadings. And although the old action of ejectment with its fictions is abolished and one form of action adopted for all cases, the essential principles of pleading at common law have not been abrogated by the code of civil procedure, but .still remain and have only been modified as to technicalities and matters of form. See Parsley v. Nicholson, 65 N. C, 207. Therefore, in actions to recover land, in analogy to ejectment under the former sjstem, where one tenant in common is sued by his co-tenant, if he does not dispute the title of the plaintiff, he should in his answer admit the title and deny the ouster; but if he only controverts the title, that must be taken as an admission of the ouster. The case of Halford v. Tetherow, supra, may seem to militate against this position, but we think that case is distinguishable from ours on that point. There, the defendant pleaded not guilty, and his entering into the consent rule was *86 not set out in the record ; and the court held it was not at liberty to assume that he admitted an “ actual ouster.” The plea of not guilty did not necessarily deny the title of plaintiff. It only denied that the defendant was a trespasser and that the plaintiff had a right to the possession. There are many cases where the plea of “ not guilty ” did not put the title in issue — as for instance, where no demand w'as made for possession before action brought, when one was necessary or when the lease under which the defendant claimed was unexpired, &c. But in our case the title of the plaintiff is expressly denied in the answer. It was objected on the argument that as the plaintiff sues for the whole of the land within the boundaries of his deed, the effect of the judgment will be to dispossess the defendant of that part. But not so ; for being a tenant in common with the defendant, though he may declare for the whole and not for an undivided moiety, he has not an absolute right to have a-verdict for the whole, but the jury may render such a verdict, and leave the plaintiff to proceed at his peril under the writ of possession. The more correct course is said to be, when the extent of the title can be seen with reasonable certainty, to set forth in the verdict the undivided share to which the title is apparent, and to enter the judgment accordingly, the effect of which will be to put him in possession with the defendant. Pierce v. Wanett, 10 Ired., 446; Shaw v. Shepard, 6 Ired., 361; Lenoir v. South, 10 Ired., 237. There is error in the opinion intimated by His Honor. The nonsuit must be set aside and a new trial had. Let this be certified. Error. Venire de novo.