DocketNumber: 8 Div. 621.
Judges: Anderson, Gardner, Miller, Sayre
Filed Date: 1/24/1924
Status: Precedential
Modified Date: 10/19/2024
Statutory action of ejectment by appellee against appellant. Plaintiff claimed, as one of five heirs, by inheritance from John F. Johnston, and put in evidence a deed, dated March 2, 1898, from J. T. Self to plaintiff's ancestor. Plaintiff made no effort to trace his title back to the government. Objection was taken against the deed on the ground that the evidence failed to show that Self was in possession at the time of his deed. Self testified broadly that he was in possession, and this evidence was competent, since possession is a fact open to observation. Abbett v. Page,
Plaintiff was one of five heirs, as we have stated. The evidence showed that defendant and those under whom he claimed had been in the adverse possession of the land for more than ten years before the commencement of this action, and plaintiff's coheirs were barred, if the statute ran against them. But plaintiff reached his majority within less than three years before suit commenced. On these facts defendant requested the court to instruct the jury that, at most, plaintiff could not recover more than a one-fifth interest in the land. This charge should have been given. We are led to believe that the trial court was influenced to refuse this charge by the following language of this court in Winsett v. Winsett,
"Being a minor recently attaining majority, if he [the complainant] may recover his moiety of said real property, the rights of the other joint tenants are saved from the operation of the statute of limitations or of the rule of repose by the infancy of this minor complainant."
That was an action for the partition, or sale for partition, of realty, in which one of the respondents claimed to have acquired an exclusive title by adverse possession, and the question there was between cotenants. This language of the court, as appears from the context, meant hardly more than that a cotenant cannot recognize the interest of one cotenant and at the same time claim to have ousted others. The court did not intend to deny that the statute of limitation may run against one cotenant and not against another who is within a saving clause of the statute. Gourdine v. Theus, 1 Brev. (S.C.) 326, was an action to try title by joint tenants, and there the court held that — *Page 619
"If one of several joint owners of an estate in land be a minor, and the rest are majors, the right of all shall be saved from the operation of the limitation act, by the infancy of the minor."
There are other authorities to the same effect. Thomson v. Gaillard, 3 Rich. 418, 45 Am. Dec. 778; Anding v. Davis,
It is the settled law of this state that, as against a mere disseizer or a stranger to the title, one tenant in common may recover the whole estate, and that the recovery in such case inures to the benefit of all. Hooper v. Bankhead,
The only other assignment of error needing notice is that the court erred in overruling defendant's contention that the statute of limitation of ten years began to run in 1906, when, plaintiff's mother having been previously appointed guardian of his person and estate, one Williams, under and through whom defendant claimed title, went into possession of the property. But the authorities hold that, whatever may or may not have been done by his guardian, the plaintiff, upon coming of age, was entitled, under the statute (Code, § 4846), to sue in his own name. 25 Cyc. 1264, note 35.
Under the evidence plaintiff was entitled to recover only the interest he showed in the land, viz., one-fifth. The judgment should be corrected so as to award to plaintiff a one-fifth interest. Appellee must pay the costs of this appeal.
Corrected and affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.