Hignite v. Hignite

Cooper, C. J., delivered the opinion of the Court. The complainants should have had a decree for partition. There is no sufficient evidence of an adverse holding by the co-tenant in possession to put in operation the statute of limitations as against the others. True it is, that he bought the land, or took a deed therefor from the widow of the common ancestor, but there is no evidence that complainant had notice thereof or ever heard that he claimed to be the owner of the whole interest in the land. A tenant in common out of possession has a right to rely upon the possession of bis co-tenant as one held according to the title and for the benefit of all interested until some action is taken by the other evidencing an intention to assert adverse and hostile claims. If one enters upon the land of a sole owner and without his consent, he must know that such possession exists, and within the time permitted by law take steps to [450] vindicate Ms right. But the possession of a co-tenant is a lawr ful possession and of and by itself is not evidence of an ouster. The. decree will be reversed and cause remanded.