Casstevens v. Casstevens , 63 N.C. App. 169 ( 1983 )

304 S.E.2d 623 (1983)

Grace H. CASSTEVENS (widow); Martha Jane Casstevens, single; Dorothy Jean C. King, and husband, Fred F. King: Viola K. Casstevens (widow); and Helen Beth C. Clark and husband, Paul Gene Clark
v.
Thelma S. CASSTEVENS (widow); Harold H. Casstevens and wife, Wilma C. Casstevens, Jay Thad Casstevens and wife, Jacqueline B. Casstevens; Nelson M. Casstevens, Sr., and wife, Ethel C. Casstevens; Nelson M. Casstevens, Jr., and wife, Barbara T. Casstevens; Nora S. Sprouse (widow) Jay Casstevens, Executor of the Estate of Marvin Hugh Sprouse.

No. 8223DC607.

Court of Appeals of North Carolina.

July 5, 1983.

Randleman, Randleman & Randleman by Richard N. Randleman, Yadkinville, for petitioners-appellants.

Shore & Hudspeth by Henry B. Shore and N. Lawrence Hudspeth, III, Yadkinville, for respondents-appellees.

ARNOLD, Judge.

This case presents two questions. First, did the respondents adversely possess the land in question to the exclusion of their co-tenants, the petitioners? Second, did the response of the petitioners to the 17 October 1979 letter toll the adverse possession by the respondents, or was the filing of their petition for partition the only act which could halt the running of time?

Under G.S. 1-40, adverse possession against an individual without color of title must run for 20 years before title ripens in the adverse possessor and is extinguished in the former owner. Adverse possession is defined "as the actual, open, notorious, exclusive, continuous and hostile occupation and possession of the land of another" for the statutory period. J. Webster, Real Estate Law in North Carolina § 286 (Hetrick rev.1981).

Before a person can adversely possess land held in co-tenancy, there must be an ouster of his co-tenants. Although older cases speak of an actual ouster, see Annot., 82 A.L.R. 2d 5, 56-63 (1962), North Carolina adheres to the rule of constructive ouster.

That rule, which was first explained in Thomas v. Garvan, 15 N.C. 223 (1833), presumes the requisite ouster "if one tenant in common and those under who he claims have been in sole and undisturbed possession and use of the land for twenty years when there has been no demand for rents, profits or possession." Collier v. Welker, 19N.C.App. 617, 621, 199 S.E.2d 691, 694-95 (1973) (emphasis added) (citations omitted).

Although the facts here do not show an actual ouster, constructive ouster was present from 21 March 1960 to at least 28 November 1979. It was on 28 November 1979 that petitioner Helen Clark notified the estate's attorney that she would seek remuneration for her share. The respondents can "tack" their possession to Hugh's prior adverse possession because they received a claim to the land upon Hugh's death. See Webster, supra, at § 292.

Even if we assume that the respondents held adversely to the petitioners, their possession and constructive ouster would not allow them to prevail unless they did so for the entire 20 year period. Upon completion of the statutory period, the ouster would then relate back to the initial taking of possession. Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158 (1940); Collier, 19 N.C.App. at 621, 199 S.E.2d at 695. Although this presumption has been criticized, see, Note, Real Property—Adverse Possession Between Tenants in Common and the Rule of Presumptive Ouster, 10 Wake Forest L.Rev. 300 (1974) cited in Sheets v. Sheets, 57 N.C.App. 336, 338, 291 S.E.2d 300, 301, disc. rev. denied, 306 N.C. 559, 294 S.E.2d 371 (1982), it is the law in our State.

Because the respondents did not oust the petitioners for the requisite 20 years here, we reverse the verdict and judgment in their favor.

Helen Clark's 28 November 1979 letter, the 18 December 1979 letter from the petitioners' attorney to the estate's attorney, and the 8 February 1980 letter from the petitioners' attorney to respondent Jay, were sufficient to toll the running of any adverse possession. Notice that Clark would seek remuneration, and the request by the petitioners' attorney for an accounting and a financial statement, amounted to "a demand for rents, profits or possession" under the case law and the rule of constructive ouster.

Because of our disposition of this case, it is unnecessary to examine the petitioners' other arguments. Since the respondents did not show continuous adverse possession for the statutory period, the jury verdict and judgment were reached incorrectly.

Reversed.

VAUGHN, C.J., and HEDRICK, J., concur.