Amis v. . Stephens , 111 N.C. 172 ( 1892 )

This case is "on all fours" with McCulloh v. Daniel, 102 N.C. 529, which is decisive of it. His Honor's attention was doubtless not called to that case. This is not a deed made by one tenant in common purporting to convey the whole, nor a deed of a sheriff under an execution sale against one tenant in common. In those cases the purchaser takes the right — neither more nor less — which the tenant in common had, and becomes a tenant in common in his stead. Hence twenty years' adverse possession of the whole is necessary to bar the other tenants in common. Ward v. Farmer,92 N.C. 93.

But here the sale, made by order of the court in 1860, purporting to convey the whole, and the decree and deed of the commissioner to same effect, is like the deed of a stranger. It was color of title, and the defendants, and those under whom they claim, have been in adverse possession ever since. It has been more than three years since 1882 (when all the plaintiffs ceased to be under disability) to the beginning of this action, and the defendants have acquired a good title. The Code, secs. 141, 148; Johnson v. Parker 79 N.C. 475.

Upon the facts found, judgment must be entered below in favor of the defendants.

REVERSED.

Cited: Ferguson v. Wright, 113 N.C. 544; Lumber Co., v. Cedar Works,165 N.C. 86; Alexander v. Cedar Works, 177 N.C. 143; Adderholt v.Lowman, 179 N.C. 550.

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