Breeden v. . McLaurin

4 S.E. 136, 98 N.C. 307

• Court: Supreme Court of North Carolina
• Decided: September 5, 1887
• Status: Published

Opinion

Smíth, O. J.,

(after stating the case). We do not see the force of the objection to the reception of what passed between the parties. It amounted to no more than an arrangement that if the petitioners established their claims to four-fifths of the land, and the defendant would sue upon .his covenant, and let them have what he might recover, that would be accepted in payment of their shares, and defendant should have an absolute estate in severalty in the lands. Nor do we see any harm to the defendant that could ensue from admission of the evidence

The remaining exception is to the refusal of the Court to give an instruction asked, to the effect that if the defendant took and held possession under his deed, openly, continuously and adversely, claiming as his own from 1871 to the bringing of this action without paying rent, and disclaiming the right of any other person to a share therein, the jury should respond to the issue in the negative. .

The proofs do not go to show, any resistance offered to an assertion of their rights on the part of the petitioners, nor indeed any action on their part to warrant the use of the word adversely, other than such as results from defendant’s undisturbed and continuous use of the premises as his own during the interval of twelve years preceding the suit. Had there been any interference from the other tenants, resisted by the occupant, the possession would then have become hostile, and the lapse of seven years thereafter would have interposed an effectual barrier to the claims' of the other tenants. This not being so, the sole question presented is whether such a possession with color of title for twelve years forms a bar to the plaintiffs’ recovery of their shares of the estate. Of this it is only necessary to state that at the last Term an able and learned argument in the case of Hicks v. Bullock, 96 N. C., 164, was addressed to us to induce the Court to review its later rulings as to the period of exclusive enjoyment by one tenant of lands held in common, whether with a deed purporting to pass the entirety or not, required to bar the other tenants, in which argument most of the cases in this State were examined and criticised with much skill, as is done on the present occasion.

We declined to reverse our later decisions, appreciating the importance of adhering to rulings which have settled the law, uni ess in palpable cases of error or where most mischievous consequence may follow.

We are content to reproduce what is said in the case referred to: “Granting that the appellant had such possession (of seven years) and that it was adverse to his co-tenants in common, and whatever differences of opinion there may have been on this subject in this State in the distant past, it is now well settled that it does not in such case have such effect. It requires such a possession continued for at least twenty years to.defeat the estate of the co-tenants in common,’’ citing numerous cases.

Nor has the warranty any additional force in modifying the rule, for the form of the conveyance is as effectual with as without covenants.

There is no error and the judgment is affirmed.