Herbert v. Babson

WEBB, Judge. In making the motion for a directed verdict the appellants did not state the grounds therefor contrary to the requirement of G.S. 1A-1, Rule 50(a). It was obviously made on the ground of the insufficiency of the appellees’ evidence. We shall consider the appeal on its merits. See Collier v. Walker, 19 N.C. App. 617, 199 S.E. 2d 691 (1973). This case brings to the Court the question of adverse possession between tenants in common. This question has recurred in our courts for many years. A tenant in common can gain title against his cotenants by actual ouster followed by the requisite years of adverse possession. An actual ouster requirés some clear, positive and unequivocal act equivalent to an open denial of the rights of the cotenants and putting them out of seisin. See Watson v. Chilton, 14 N.C. App. 7, 187 S.E. 2d 482 (1972). A tenant in common may also acquire the title of cotenants by constructive ouster. See Brewer v. Brewer, 238 N.C. 607, 78 S.E. 2d 85 (1979); Dobbins v. Dobbins, 141 N.C. 220, 53 S.E. 2d 870 (1906); Casstevens v. Casstevens, 63 N.C. App. 169, 304 S.E. 2d 623 (1983); Sheets v. Sheets, 57 N.C. App. 336, --- S.E. 2d --- (1982); Collier v. Walker, supra and Webster’s Real Estate Law in North Carolina sec. 301, page 327. If a cotenant occupies the entire property for twenty years to the exclusion of a cotenant it is presumed there was an ouster at the time of the entry and it is presumed the action of the occupying cotenant during this period includes everything necessary to establish adverse possession. This rule has been criticized since the entry and possession of a tenant in common is presumed not to be adverse to the cotenants. If the occupation of the premises for twenty years gives rise to a presumption, as does the rule of presumptive or constructive ouster, that during the twenty year period the possession was adverse it has been said that this presents an anomaly. See “Adverse Possession between Tenants in Common and the Rule of Presumptive Ouster,” 10 Wake Forest Law Review, page 300. The appellees argue that there was an actual ouster when they entered the premises more than thirty years prior to the filing of this proceeding. They contend that the evidence that they went into possession of the house and lot and used it exclusively for their family, that they made substantial improvements to the [522] house, and paid no rent on the property is evidence from which the jury could find the appellees had performed clear, positive and unequivocal acts which put the petitioners on notice more than twenty years before the petition was filed that the respondents claimed sole seisin to the house and lot. During this time there was a presumption that the respondent Vivian H. Babson was holding for her cotenants. We hold there was not enough evidence of an actual ouster to be submitted to the jury. The question of a constructive ouster presents a more difficult problem. If one tenant in common has been in sole and undisturbed possession and use of the property for twenty years, without any demand for rents, profits or possession by the cotenants, constructive ouster of the cotenants is presumed, and the ouster relates back to the initial taking of possession by the tenant in possession. Collier v. Walker, supra. However, if the tenant in possession does anything to recognize title of the cotenants during the twenty-year period, the presumption of ouster does not arise. Mott v. Land Company, 146 N.C. 525, 60 S.E. 423 (1908); Sheets v. Sheets, supra; Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E. 2d 85 (1979). We hold that the listing of the property for county taxes in the name of the “Heirs of Henry Herbert” which includes all tenants in common, and the payment of taxes and insurance premiums by all the tenants in common are acts sufficient to show recognition of the title of the petitioners by the respondent appellees so as to prevent the presumption of constructive ouster from arising. In the absence of such presumption, there was insufficient evidence to submit the respondents’ claim to the property by adverse possession to the jury. We hold there must be a new trial on the respondents’ claim for the value of the improvements. New trial. Judges Phillips and Martin concur.