McCann v. Travis , 63 N.C. App. 447 ( 1983 )

305 S.E.2d 197 (1983)

Ruby Elizabeth McCANN
v.
James Wharton TRAVIS.

No. 829SC877.

Court of Appeals of North Carolina.

August 2, 1983.

Bobby W. Rogers, Henderson, for plaintiff-appellee.

Hight, Faulkner, Hight & Fleming by Henry W. Hight, Jr., Henderson, for defendant-appellant.

BRASWELL, Judge.

The case turns upon two basic issues: (1) were the plaintiff and defendant tenants in common in the disputed property, and, if so, (2) did the plaintiff prove adverse possession for 20 years (and not 7 years under color of title)? We hold that the evidence requires an affirmative finding that the parties were tenants in common. We also hold under the evidence that the plaintiff has failed to prove adverse possession for 20 years. The application here of the doctrine of adverse possession for 7 years under color of title to a claim against tenants in common was erroneous. The judgment of the trial court for the plaintiff is reversed.

The uncontroverted evidence shows that plaintiff and defendant owned the disputed tract of land as tenants in common by virtue of each party claiming ownership through a sibling of M.P. Travis. No deed in evidence ever succeeded in destroying the unity of possession by which any tenant in common was in possession for all. A discernible mathematical share of the land always remained as an undivided interest in each chain of title.

Plaintiff obtained her portion of this land from the heirs of Sabat Smith. Sabat was a sibling of M.P. Travis. Defendant obtained his portion of this land from his father, J.B. Travis. J.B. Travis was the son of W.G. Travis, who was a sibling of M.P. Travis, and a brother of Sabat Smith.

As between tenants in common, adverse possession is governed by its own set of rules. See Annot., Adverse Possession Between Cotenants, 82 A.L.R. 2d 5, 140 (1962). We hold that the following rules apply, as summarized by this Court in Young v. Young, 43 N.C.App. 419, 427, 259 S.E.2d 348, 352 (1979):

"Because defendants were tenants in common with the plaintiff, their possession for a period of less than twenty years could not be adverse to the plaintiff, absent an actual ouster of the plaintiff. This is so because a tenant in common has the right to possess the property and is presumed to be holding under his true title. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507 (1944). The possession of a tenant in common is not considered adverse to his cotenant unless he ousts his cotenant ``by some clear, positive, and unequivocal act equivalent to an open denial of his [cotenant's] right.' Dobbins v. Dobbins, 141 N.C. 210, 214, 53 S.E. 870, 871 (1906). If the tenant in common gives a deed which purports to convey the whole estate, the grantee therein merely steps into his grantor's shoes. As a result, the deed is not color of title as against the grantor's cotenants, and seven years' possession under the deed will not ripen title to the whole estate in the grantee. Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158 (1940). ``In the absence of actual ouster, the ouster of one tenant in common by a cotenant will not be presumed from an exclusive use of the common property and the appropriation of its profits to his own use for a less period than twenty years ....' Morehead v. Harris, 262 N.C. 330, 343, 137 S.E.2d 174, 186 (1964)."

Pursuant to these rules, plaintiff could be adjudged the fee simple owner of the land only if she or her predecessors in title actually ousted defendant or his predecessors or adversely possessed the disputed property for at least twenty years. Both the referee and the trial court found "[t]hat the Plaintiff's evidence does not establish by the greater weight of the evidence that the occupation and use of the said disputed tract of land by herself and her predecessors in title has been exclusive and continuous for a period of at least twenty years." Since plaintiff has not excepted to this finding, we need consider only whether there was an actual ouster of defendant or his predecessors.

An actual ouster has been described as an entry or possession of one tenant in common that enables a cotenant to bring ejectment against him. The entry or possession "must be by some clear, positive, and unequivocal act equivalent to an open denial of his right and to putting him out of the seizin." Dobbins v. Dobbins, 141 N.C. 210, 214, 53 S.E. 870, 871 (1906). Plaintiff would have us find that either her adverse possession of the disputed property under color of title for 7 years, or her possession under the alleged 1917 parol partition of the Travis property would constitute an ouster, and thus entitle plaintiff to fee simple ownership. However, as previously noted, adverse possession even under color of title will not ripen title as against a tenant in common short of twenty years. See Duckett v. Harrison, 235 N.C. 145, 69 S.E.2d 176 (1952), and cases cited therein. Also, under the facts in the record, the alleged parol partition fails to work an ouster. As held by the court in Duckett, id. at 147, 69 S.E.2d at 178,

"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. (Citations omitted)."

According to the record, the evidence to support the 1917 oral partition is contained in the 1956 deed from W.G. Travis to J.B. Travis. In surplus words following the description, it appears that the 55-acre tract of M.P. Travis "was inherited by Mrs. Sabat Smith, Mrs. Bettie T. Williams, and W.G. Travis," that a surveyor was employed to divide the land into three parts, and that "Mrs. Sabat Smith drew the western share, W.G. Travis drew the center share and Bettie Williams the eastern share.... It is the intention of this deed to transfer all right, title and interest now owned by W.G. Travis in the M.P. Travis land ... to the grantees named herein whether or not land is fully described above." While this deed succeeded in conveying to J.B. Travis all the interest in the land then owned by W.G. Travis, the deed fails to constitute an ouster. There is no showing of known and visible boundaries of each of the three shares with lines plainly marked on the ground as of the 1917 partition. Also, the evidence fails to show that in 1917 the three tenants in common went into possession of their respective shares in the division in accordance with the agreement, which agreement was memorialized in 1956 by only one of the three heirs.

In considering the findings of fact made by the referee and adopted by the trial court, this Court must find them conclusive if there is any competent evidence to support them. Morpul, Inc. v. Knitting Mill, 265 N.C. 257, 143 S.E.2d 707 (1965). We find the evidence considered by the referee competent to support a finding that plaintiff adversely possessed the disputed property under color of title for 7 years only. Her evidence shows that she purchased the property at issue on 17 March 1967. The property was surveyed and deed recorded on 4 October 1967. Plaintiff's brother testified that he had planted crops on the disputed tract since 1968. There was further evidence that plaintiff enjoyed uninterrupted possession of the land from 1967 until 1976; that she collected rent from her brother and that it was generally known in the community that Sabat Smith had owned the disputed land. At most, plaintiff can show adverse possession for ten years, plus a few months. Thus, the evidence fails to contain facts justifying an award of title to the plaintiff by adverse possession as between tenants in common.

Judgment for the plaintiff is reversed.

ARNOLD and WEBB, JJ., concur.