Mott v. Carolina Land & Lumber Co. , 146 N.C. 525 ( 1908 )

This was a special proceeding for partition. The defendant pleaded sole seizin, and the cause was transferred to the Superior Court at term for trial. John Cox died, in 1853, owner of the land in controversy, which descended to his five children as heirs at law. The land consisted of nine tracts, mostly woodland, there being some clearing on two tracts only. W. C. Mercer, who was the husband of one of the heirs, entered into possession and qualified as administrator. There was evidence that he entered in right of his wife, and also that he rented out the land as administrator, though strictly legally this must be construed as an agency for the heirs at law. In 1868, in 1874, in 1882, and in 1883 said Mercer bought successively the shares of four of the heirs at law, who had increased in numbers, taking deeds therefor, thus recognizing the cotenancy. His possession up to 1883 was therefore the possession of his cotenants. Bullin v. Hancock,138 N.C. 198; Whitaker v. Jenkins, ib., 476; Dobbins v. Dobbins,141 N.C. 217. In 1890 W. C. Mercer and wife conveyed the entire tract of Hathaway, who reconveyed to Mercer in 1894. In 1897 Mercer conveyed to Snider, under whom, through mesne conveyances, the defendant claims. Mercer being in possession, acknowledging the cotenancy by taking conveyances of four of the heirs, there was no ouster or disavowal of the cotenancy presumed, and there was no evidence thereof till his deed to Hathaway, in 1890. As this action was begun in 1906, there is adverse possession for only sixteen years. If there had been an ouster and adverse possession from 1883 to 1890, it would have ripened defendant's title. Rev., 384; Covington v. Stewart, 77 N.C. 148. But there was no evidence (527) to show this, and the court properly told the jury that the burden to make out twenty years adverse possession was upon the defendant. This is true, whether an actual ouster is relied on or a presumption from nonpayment of rent or nonrecognition of the cotenant as such.

No error.