Alexander v. . Gibbon , 118 N.C. 796 ( 1896 )

AVERY, J., concurs in the conclusion, but not in the opinion. The facts appear in the opinion. This is a proceeding commenced in the Superior Court of Mecklenburg (before the clerk) by a part of the children and heirs at law of Joseph M. Alexander against the other children and heirs at law of said Alexander and the husbands of the feme defendants for sale and partition of land. All the heirs so made defendants answer and admit the tenancy in common, except Harriet, who is the wife of the defendant N. Gibbon. She files no answer, and thereby admits the allegations of the complaint and the tenancy in common. The defendant N. Gibbon, who is not a child and heir at law of Joseph M. Alexander, alone answers the complaint, which consists of six paragraphs, as follows:

"The defendant N. Gibbon answers the petition and says that the land mentioned and described in said petition is not the property of the persons named as the tenants in common thereof, but that (798) he is sole seized of said land and is in possession of it in his own right."

It is admitted, as claimed by defendant, that when sole seizin is pleaded in a proceeding among tenants in common for partition it becomes substantially an action of ejectment (Honeycutt v. Brooks, 116 N.C. 788), and it then becomes subject to the rules of law applicable to trials in actions of ejectment, that plaintiffs must recover by the strength of their own title, and not on the weakness of defendant's title. This is the doctrine enunciated in Honeycutt v. Brooks, supra.

And while this case and this line of authorities puts the burden of proof in actions of ejectment on the plaintiffs, it also puts upon the defendant the burden of the rules pertaining to such trials.

Plaintiffs, then, may establish their title in any way they might do if this had originally been commenced as an action of ejectment — by showing an unbroken line of conveyances from the State to them, or to Joseph M. Alexander, their father, and that he is dead, or by showing possession in Joseph M. Alexander and those under whom he claimed to the time of his death, and the possession of his heirs at law since his death, for a sufficient length of time to establish or to ripen their title into a perfect title, or, by way of estoppel, by showing that the defendant claims title from the same source as plaintiff, or by showing that he entered and sustains the relation of tenant to plaintiffs. Conwell v. Mann,100 N.C. 234.

These are the general rules applicable to all actions of ejectment, and must apply to actions for partition, where sole seizin is pleaded, and the action becomes substantially an action of ejectment, but in this case they are peculiarly applicable and illustrate the wisdom of their application. The plaintiffs allege that, as the heirs at law of Joseph M. Alexander, they and the other heirs at law (799) of said Alexander, as such heirs, are tenants in common of the land described in the complaint. All the heirs answer and admit these allegations, except Harriet, who files no answer, and in this way admits the allegations of the complaint. But the defendant N. Gibbon, not an heir of J. M. Alexander, but who happened to be the husband of Harriet, and in that way made a defendant, answers and says it is not true that the plaintiffs and defendants, who are the heirs of J. M. Alexander, are the owners of this land, but that he is the owner. And when plaintiffs offered evidence to show that defendant Gibbon entered as the tenant of the heirs and was to pay the taxes and was to look after and take care of the land for the heirs, he objected to the evidence and the court ruled it out. In this there was error. The authorities are so numerous and uniform that defendant admits that this evidence would have been competent if the heirs had brought an action of ejectment against him; but he says, as they brought an action for partition, which he has turned into an action of ejectment, it is incompetent. This cannot be so. To sustain this ruling of the court would be to destroy one of the most valuable rules of practice and evidence, a rule honorable alike for its age and for its usefulness. To sustain such rulings would be to destroy all reasoning by analogy and the logic of the law.

This rule of estoppel, based upon a common source, is not simply an arbitrary fiction of the law; it is based on sound reasoning and logical deduction. If two parties claim title from A., it must be conceded by them that A. had the title, or they would not claim under him. This being so, it is not necessary to consume time in proving what is admitted to be true — that A. had the title.

(800) Then A. is made the starting point, and it is only left to determine who has A.'s title or the title derived from A.

In a case of tenancy in common, where the parties claim as heirs at law, under the canons of descent the establishment of the common course determines the rights of the parties. As in this case all the heirs at law of J. M. Alexander claim that he was the owner of this land at the time of his death, this establishes as to them the legal title to this land, and they are forever estopped to deny this, just as any other parties of record are estopped by the judgment of a court of competent jurisdiction. So we see that the operation and effect of this rule of estoppel is to establish the title in the plaintiffs. And the rule that the plaintiff must recover by the strength of his own title, and not by the weakness of the defendant's title, is preserved.

When this case was argued, and when first considered, it was treated by us as if the plaintiffs were proposing to prove the declarations, and admissions of one of the heirs at law of Joseph M. Alexander.

But upon further consideration we find this is not the case. Had this been so, we would have held that this evidence was competent as tending to show that the heir at law of said Alexander claimed title under the common ancestor and disprove the plea of sole seizin. Nelson v. Whitfield,82 N.C. 46; Graybeal v. Davis, 95 N.C. 508; Conwell v. Mann,100 N.C. 234; Clifton v. Fort, 98 N.C. 173, and that line of cases.

But it was clearly admissible to show that the defendant N. Gibbon entered under a contract and agreement with the heirs of J. M. Alexander to pay the taxes and to look after and take care of the property for the heirs, which constitutes, as between him and the heirs, the relation of landlord and tenant, and that he was thereby (801) estopped to deny the title of the heirs. Cooper v. Axley, 114 N.C. 621; Conwell v. Mann, 100 N.C. 234.

It was also admissible to establish the fact of tenancy, as effecting the question of title by occupancy. As it is a well-established principle of law that possession by a tenant is the possession of the landlord, and whenever it is established that N. Gibbon was the tenant of the heirs of J. M. Alexander, then the time that he has been in possession is to be added to the possession of J. M. Alexander and his tenants as evidence going to make out title by occupancy or possession.

Defendant N. Gibbon asked for special instructions, which were given by the court, as asked. Each of these instructions were excepted to by plaintiffs, and each exception must be sustained. The instructions are as follows:

1. "That in order to show title in themselves plaintiffs must satisfy the jury, by preponderance of evidence, that there has been open, notorious and adverse possession of the land for thirty years by J. M. Alexander (this is necessary to show title out of the State); that plaintiffs must also show an open, notorious, adverse and continuous possession for twenty years in J. M. Alexander, in order to vest the title in them as his heirs.

2. "That this possession must be open and notorious and continuous. If there was an interval of several years, during which J. M. Alexander had no such possession, the possession would not be continuous. The possession must also be adverse, and the mere fact that J. M. Alexander actually occupied the land or had possession of it would not be sufficient to show an adverse possession, because the plaintiffs must show, not only a possession, but must go further and show affirmatively that this possession was adverse, as the law does not infer from the mere fact of the possession that it was adverse.

4. "That in ascertaining the length of the possession of (802) J. M. Alexander the time from 20 May, 1861, to 1 January, 1870, must be excluded from the count.

5. "That plaintiffs must not only show an open, notorious, adverse and continuous possession for twenty years, but the said possession, in order to confer a title good against the defendant N. Gibbon, must have been under known and visible lines or boundaries."

The first instruction is erroneous, for the reason that it is complicated, involved and confusing. It at least leaves the jury in doubt as to whether the thirty years' adverse possession is sufficient to establish title in the plaintiffs, or whether it requires both thirty years and twenty years, making fifty, to do so. It is also erroneous in that it limits the time in which plaintiffs may make out their title by adverse possession to the death of J. M. Alexander; whereas the plaintiffs, the heirs, should have been allowed to show possession in themselves since the death of their father, if they could do so.

The second prayer and instruction is erroneous, in that it holds that possession or occupation of itself is not sufficient to constitute adverse possession. "But that plaintiffs must go further and show affirmatively that this possession was adverse, as the law does not infer from the mere fact of the possession that it was adverse."

To sustain this ruling would be to overrule Bryan v. Spivey, 109 N.C. 57, which expressly holds that the law presumes possession unexplained to be adverse possession.

The fourth prayer and instruction are erroneous. Sections 136 and 137 of The Code, which suspended the running of the statute of limitations and the presumptions of time, were repealed by chapter 113, Laws 1891, but not to apply to actions commenced prior (803) to 1 January, 1893, and, of course, apply to all actions commenced after that time. This action was commenced 31 May, 1895. Nunnery v. Averitt, 111 N.C. 394.

But the learned counsel for the defendant N. Gibbon, in his argument, said, if there were errors in the prayers for instructions which were given by the court — and he did not think there were — that they should not avail the plaintiffs, for the reason that they had failed to allege in their complaint that they were in possession of the land described in the complaint.

We have seen that one of the heirs at law of J. M. Alexander (Mrs. Gibbon) was living on the land, and if the defendant N. Gibbon is the tenant of the heirs, as they allege he is, they are in possession through him. The possession of one tenant in common is the possession of all. The law presumes the possession to be in the owner, where there is no adverse possession (Thomas v. Garvan, 15 N.C. 223); and the possession of N. Gibbon cannot be adverse if he entered as plaintiff's tenant. So it is seen that, at the most, this would have been but a formal statement in this case. It was not made below, or it would in all probability have been amended, and for this reason we would dislike to feel compelled to sustain this objection.

The defendants' counsel cites Alsbrook v. Reid, 89 N.C. 151, which seems to sustain him. But upon examination we find that sections 1892 and 1903 do not sustain this objection. Section 1892 provides for partition, in the following language: "The Superior Court, on petition of one or more persons claiming real estate as tenants in common." And section 1903 of The Code provides for partition "by one or more of the parties interested therein." And while it seems clear that these sections, which provide for the partition of (804) land among tenants in common, do not require any such averment in the complaint, we would still hesitate to overrule what seems to be held to be the construction in Alsbrook v. Reid upon this authority alone. But Alsbrook v. Reid cites two cases as authority for this ruling, and upon examination we find that neither one of them sustains this ruling, and Thomas v. Garvan, 15 N.C. 223, one of the cases cited, is directly to the contrary, holding that the law presumes possession unless there has been an actual ouster; and the other case cited as authority for the ruling in Alsbrook v. Reid is Ledbetter v. Gash,30 N.C. 462, and this case does not even discuss the question.

Upon these authorities we feel justified in overruling that part ofAlsbrook v. Reid which requires it to be alleged in the petition or complaint that the tenants in common are in possession of the land they ask to have partitioned, and which makes this allegation a question. jurisdictional question. This had, in effect, been done in Epley v. Epley,111 N.C. 505.

If an action is wrongfully brought for partition, this may be taken advantage of by answer.

There is error, as pointed out in this opinion, for which the plaintiffs are entitled to a

New Trial.