Straughan v. . Tysor

This is a petition filed before the clerk by plaintiffs, as administrators d. b. n. of Josiah Tysor, against the defendants, the widow and brother and sisters of said Josiah, for the purpose of selling land for assets. The plaintiffs allege that their intestate died in 1896 seized and possessed of the land described in the petition. The defendants, except the widow, answer and aver that they were tenants in common with said intestate. On the trial of this issue in the Superior Court, (231) "Was the plaintiffs' intestate seized and possessed in severalty of the lands described in the complaint at the time of his death?" his Honor instructed the jury that if they believed the evidence, to answer the issue "Yes," which they did, and judgment was entered directing that the sale proceed and that the commissioners to sell make their report to the clerk.

The plaintiffs introduced as evidence a deed, proper in form, to convey title to their intestate from his uncle, Harris Tysor, dated and delivered in June, 1868, and proved that their intestate lived on said land until his death in 1896, and that no one else ever cultivated the land or had anything to do with it.

The defendants proved that Dennis Tysor, father of plaintiffs' intestate and defendants, formerly lived on this land and that after the death of Dennis his widow, daughters and said Josiah lived on the land until the daughters were married. This was the evidence. There is no question of ouster or adverse possession in the case. The defendants have shown no title from any source, but simply occupation with their brother Josiah until they married. They asserted no claim until this action was instituted. The plaintiffs show title, color of title, and possession in their intestate, and that he alone exercised ownership by cultivation, etc., until his death, covering a period of more than twenty-six years after the date of his deed.

On the principle that possession is implied from title, in the absence of any adverse claim, until the contrary is shown, we hold that the plaintiffs' intestate was not only seized but was possessed of the land in dispute and covered by plaintiffs' deed, and that no error was committed by the court below.

NO ERROR.

Cited: Currie v. Gilchrist, 147 N.C. 652.

(232)