Hardee v. Weathington.

This was a proceeding for partition, begun before the clerk. Upon the allegation in the answer of sole seizin, the issues were transferred for trial at term time. The Code, sec. 256.

The defendant claims under a deed to Samuel Corey from one tenant in common, purporting to convey the whole. There was evidence (92) that Corey did not go into possession until 1891 (and evidence by defendant that he took possession prior thereto, but not prior to 1883), and that certain of plaintiffs who are femes covert married prior to coming of age.

The ouster of one tenant in common by another will not be presumed from an exclusive use of the common property and appropriation of the profits for a less period than twenty years; and the result is not changed when one who enters to whom a tenant in common has by deed attempted to convey the entire tract. Roscoe v. Lumber Co., 124 N.C. 42, citing Ward v. Farmer,92 N.C. 93, and several other cases. Sole possession under such deed for less than twenty years does not raise a presumption that the cotenant not joining in the deed has been evicted, for one tenant in common can not thus make the possession adverse to his cotenant. Registration of the deed does not have the effect of an ouster. Ferguson v. Wright, 113 N.C. 537; Pagev. Branch, 97 N.C. 97; 2 Am. St., 281.

The rule laid down in Nelson v. Insurance Co., 120 N.C. 302 — that the possession of land under a deed, apparently good and sufficient, properly acknowledged and unimpeached, is sufficient evidence of title, and it is not error to instruct the jury, if they believe the evidence, to return a verdict for the grantee — does not apply here, for the deed is impeached by showing that it is executed by one tenant in common purporting to convey the whole. Twenty years' sole pernancy of the profits was not shown, nor was there uncontradicted evidence of seven years' adverse possession as to the plaintiffs. In directing the jury, if they believed the evidence, to answer the first three issues in favor of the defendant, there was

Error.

(93)