Thomas v. . Garvin , 15 N.C. 223 ( 1833 )

It was further proved that Ephraim Mulford before the sale to Garvan resided with him and they cultivated the disputed lands together. After the death of Mulford, his widow resided 4 or 5 miles from the disputed land.

The jury were instructed, that if the defendant and her husband during his life had continued in adverse possession of the land under the deed from Mulford and wife, for seven years from the death of Mulford, the entry of the petitioners was barred, and they were not tenants in common with petitioners and consequently were not entitled to have partition of the lands. They were also further instructed, that if they had been tenants in common, yet if the mother of the petitioners had been actually ousted of the possession by Garvan, and he, and those claiming under him, were in the sole possession claiming adversely to her, the petition could not be sustained, but the plaintiffs were put to their action of ejectment.

The jury, under the instructions, returned a verdict for the defendant, and the petition was dismissed with costs, from which judgment the plaintiffs appealed. A proceeding for partition at law, cannot take place except there be a common possession, and a common possession is always implied from a common title until the contrary be shown. But if an actual ouster be made by one tenant in common with his co-tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety.

The sole enjoyment of the property by one of the (225) tenants is not of itself an ouster, for his possession will be understood to be in conformity with right, and the possession of one tenant in common, as such, is in law the possession of all the tenants in common. But the sole enjoyment of property for a great number of years, without claim from another, having right and under no disability to assert it, becomes evidence of a title to such sole enjoyment; and this not because it clearly proves the acquisition of such a right, but because from the antiquity of the transaction, clear proof cannot well be obtained to ascertain the truth, and public policy forbids a possessor to be disturbed by stale claims when the testimony to meet them cannot easily be had. Where the law prescribes no specific bar from length of time, twenty years have been regarded in this country as constituting the period for a legal presumption of such facts as will sanction the possession and protect the possessor. We think the Judge who tried this cause was correct in charging the jury that the twenty-one years exclusive possession of the defendant, and her deceased husband, since the petitioner became discovert, did raise the legal presumption of an ouster; that the verdict of the jury, upon that instruction was right, and that there is no error in the judgment which was rendered against the petitioner.

The judgment of the Court below, must be affirmed with costs.

PER CURIAM. Judgment affirmed.

Cited: Baird v. Baird, 21 N.C. 538; Northcott v. Casper, 41 N.C. 314;Black v. Lindsay, 41 N.C. 468; Purvis v. Wilson, 50 N.C. 24; Dayv. Howard, 73 N.C. 6; Covington v. Stewart, 77 N.C. 150; Withrow v.Biggerstaff, 82 N.C. 84; Alsbrook v. Reid, 89 N.C. 153; Page v. Branch,97 N.C. 102; Alexander v. Gibbon, 118 N.C. 803.