Duckett v. Harrison ( 1952 )

69 S.E.2d 176 (1952) 235 N.C. 145

DUCKETT
v.
HARRISON et al.

No. 19.

Supreme Court of North Carolina.

February 27, 1952.

D. Emerson Scarborough, Yanceyville, for appellant R. L. Harrison.

Sharp & Robinson and P. W. Glidewell, Sr., all of Reidsville, for appellee.

No counsel for the appellees, Dora Harrison and Lillie Harrison.

DENNY, Justice.

In order for tenants in common to perfect title to the respective shares of land allotted to them by parol, it is necessary for them to go into possession of their respective shares in accordance with the agreement and to hold possession thereof under known and visible boundaries, consisting of lines plainly marked on the ground at the time of the partition, and to continue in possession openly, notoriously and adversely for twenty years. Rhea v. Craig, 141 N.C. 602, 54 S.E. 408; Collier v. Paper Corp., 172 N.C. 74, 89 S.E. 1006; Lewis v. Lewis, 192 N.C. 267, 134 S.E. 486.

However, if prior to the expiration of the adverse possession for twenty years, the statute of frauds is invoked by one or more of the tenants in common, the parol partition may not be enforced. "It is well settled that a parol partition of lands is a contract, within the purview of the statute of frauds, and is not binding." Fort v. Allen, 110 N.C. 183, 14 S.E. 685; Medlin v. Steele, 75 N.C. 154.

In the case of Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507, 509, Justice Winbourne, in speaking for the Court, said: "It is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his co-tenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster would be presumed", citing numerous authorities. See also Parham v. Henley, 224 N.C. 405, 30 S.E.2d 372; Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E.2d 899.

Moreover, adverse possession, even under color of title, will not ripen title as against a tenant in common under twenty years. Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440; Bradford v. Bank of Warsaw, 182 N.C. 225, 108 S.E. 750.

Furthermore, if it be conceded, as contended by the defendant, R. L. Harrison, that there was a parol division of the lands in controversy in 1934 and that Dora Harrison entered into possession of the premises allotted to her, collected rents therefrom, paid taxes thereon, this would not be sufficient to prevent the operation of the statute of frauds, since we do not recognize the doctrine of part performance in this jurisdiction, and twenty years have not elapsed since the defendant, R. L. Harrison, contends the property was divided. Albea v. Griffin, 22 N.C. 9; Allen v. Chambers, 39 N.C. 125; Barnes v. Teague, 54 N.C. 277; Rhea v. Craig, supra; Ballard v. Boyette, 171 N.C. 24, 86 S.E. 175; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331.

The case of Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, upon which the appellant is relying, is not controlling on the facts presented on this appeal. There, David E. Thomas, Sr., prior to his death on 27 January, 1925, joined by his wife, Emma C. Thomas, executed fourteen deeds of gift whereby he attempted to convey to his several children certain tracts or lots of land which he owned. None of the deeds was delivered prior to his death but all of them were kept in a lock box in a bank in Greensboro. David E. Thomas, Sr., left a will, and a few days after his death his executrices filed all the deeds for record in the office of the register of deeds and took them from the office after registration and delivered or mailed them to the several grantees. The children received these deeds and went into possession of the respective tracts therein described and immediately began to collect rents from the tenants. About two years thereafter, one of the children instituted an action which involved the title to a parcel of the land described in one of the deeds in which she was the designated grantee. The court held that although the deeds were void, the fact that they were paper writings definitely describing the respective tracts of land set out by metes and bounds, and since the children retained the deeds, after the registration thereof by the executrices, and took possession of the parcels or tracts of land described in the respective deeds to them, paying taxes on their respective tracts or parcels of land, renting, leasing, and collecting rents from the respective tracts or parcels of land, and selling and conveying some of the parcels allotted to them, they had adopted, affirmed, ratified and acquiesced in the parol partition and had each and all mutually estopped themselves from claiming any of the tracts or parcels of land described in any of the deeds in which any of the other children were named as grantees.

However, there is no deed or other writing involved in the present appeal describing the respective tracts of land alleged to have been allotted to R. L. Harrison and Dora Harrison which the parties have ratified and affirmed. Therefore, we find nothing in the record to sustain the doctrine of estoppel against either Dora Harrison or her successor in title, Eliza H. Duckett.

The judgment of the court below is

Affirmed.