Collier v. Welker

199 S.E.2d 691 (1973) 19 N.C. App. 617

James O. COLLIER and Juliet W. Collier
v.
Clay L. WELKER et al.

No. 7318SC248.

Court of Appeals of North Carolina.

October 24, 1973.

Smith, Patterson, Follin & Curtis by Marion G. Follin, III, Greensboro, for plaintiff appellees.

Douglas, Ravenel, Hardy & Crihfield, by Robert D. Douglas, III, Greensboro, for defendant appellants.

VAUGHN, Judge.

Defendants' motions for a directed verdict at the close of plaintiffs' evidence and at the close of all the evidence and their motion for judgment notwithstanding the verdict were denied. The question presented by defendants' motions for directed verdict is whether the evidence, when considered in the light most favorable to plaintiff, is sufficient for submission to the jury. This is substantially the same question formerly presented by a motion for nonsuit. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396. Although defendants failed to specifically designate the insufficiency of plaintiffs evidence as the ground for the motion for directed verdict, that is obviously the question thev sought to raise. In this instance we have, in our discretion, considered the question thus presented on its merits.

Plaintiffs Collier possessed the property as tenants in common with the defendants, as had J. Ralph Hobbs and Benjamin Parker through whom plaintiffs claim. Because the nature of the relationship between tenants in common precipitates an assumption in law that cotenants will be "true to each other. The possession of one is the possession of all" with the result that any of them "is supposed to protect the right of his [fellows]." Cox v. Wright, 218 N.C. 342, 349, 11 S.E.2d 158, 162, quoting Day v. Howard, 73 N.C. 1. Accordingly, our courts have long maintained that one tenant in common cannot adversely possess without an ouster, either actual or constructive, of his co-owners. E. g., Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719; Cox v. Wright, supra.

Even where a co-owner appropriates rents and profits for his sole benefit, silent occupation and exclusive use of the entire property does not qualify as actual ouster, absent a demand for accounting by the excluded tenants in common. Cox v. Wright, supra; Clary v. Hatton, 152 N.C. 107, 67 S.E. 258; Dobbins v. Dobbins, 141 N.C. 210, 53 S.E. 870; Bullin v. Hancock, 138 N.C. 198, 50 S.E. 621. This position is consistent with the general precept that, regardless of a conflicting rule with respect to persons who are not joint owners, "the entry and possession of one tenant in common are presumed not to be adverse to his contenants." 4 Thompson, Real Property (1961 Replacement), § 1810, p. 204. The lack of a presumption of adversity as between tenants in common is particularly significant in view of the fact that possession is not adverse unless it is, among other things, notorious. Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235; Locklear v. Savage, 159 N.C. 236, 74 S.E. 347. One cotenant may not be deprived of his rights by another cotenant unless the allegedly disseized has actual knowledge or constructive notice of a co-owner's intent to dispossess. As the court noted in Clary v. Hatton, supra, the adverse nature of a cotenant's possession must be "manifested by some clear, positive and unequivocal act equivalent to an open denial of the co-tenants' rights, and putting them out of seisin." Ordinarily, a particular action or activity falls outside the purview of this test unless it exposes the actor to an action by the cotenants for a breach of fealty. Cox v. Wright, supra; Clary v. Hatton, supra; Dobbins v. Dobbins, supra; Page v. Branch, 97 N.C. 97, 1 S.E. 625. See Webster, Real Estate Law in North Carolina § 260(a) and (b).

Although ouster is required to support a cotenant's claim of adverse possession, our courts have favorably acknowledged the concept of constructive ouster. Ouster is presumed if one tenant in common and those under whom he claims have been in sole and undisturbed possession and use of the land for twenty years when there has been no demand for rents, profits or possession. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174; Brewer v. Brewer, supra; Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Lester v. Harward, 173 N.C. 83, 91 S.E. 698; Lumber Co. v. Cedar Works, 165 N.C. 83, 80 S.E. 982; Shannon v. Lamb, 126 N.C. 38, 35 S.E. 232. Upon completion of the requisite 20-year period, ouster relates back to the initial taking of possession. Cox v. Wright, supra; Lumber Co. v. Cedar Works, supra; Dobbins v. Dobbins, supra; 1 Mordecai, Law Lectures, Chapter XVII, p. 624. Not only does 20 years of exclusive possession raise a presumption of ouster, but it also supplies all the elements necessary to support a finding that the possession was adverse and included elements of notice and hostility. The rule is clearly set forth in Dobbins v. Dobbins, supra:

"We have thus reviewed this subject to show the nature of an ouster, and in order that we may understand clearly what it is the law means when it is said to presume an ouster. It is a disseizin by one tenant of his cotenant, the taking by one of the possession and holding against him by an act or series of acts which indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the right of the other. This is what the law presumes, whether it be in exact accordance with the real facts or not. It is a presumption the law raises to protect titles, and answers in the place of proof of an actual ouster and a supervening adverse possession. The presumption includes everything necessary to be proved when the title can be ripened only by actual adverse possession as defined by this court.. . ." (Emphasis added.)

The rule of a presumption of rightful possession after 20 years is designed "to prevent stale demands" from those who have slept on their rights for so long a period and "to protect possessors from the loss of evidence from lapse of time." Black v. Lindsay, 44 N.C. 467, quoted in Dobbins v. Dobbins, supra.

The evidence was sufficient to permit a finding that plaintiffs and those under whom they claim had been in exclusive and peaceable possession, without an account to or claim by defendant, for more than twenty years prior to institution of the action. Under the presumption so often repeated in the cases cited, that evidence was sufficient to permit the case to go to the jury and sustain the verdict.

We have considered defendants' assignments of error directed at the charge to the jury and find nothing so prejudicial as to require a new trial.

No error.

BROCK, C. J., and MORRIS, J., concur.