Hardee v. Weathington.

Supreme Court of North Carolina

Hardee v. Weathington.

40 S.E. 855, 130 N.C. 91, 1902 N.C. LEXIS 26

CourtSupreme Court of North Carolina

DecidedMarch 18, 1902

StatusPublished

Cited by1 cases

This text of 40 S.E. 855 (Hardee v. Weathington.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardee v. Weathington., 40 S.E. 855, 130 N.C. 91, 1902 N.C. LEXIS 26 (N.C. 1902).

Pincite

Opinion

Clark, J.

This was a proceeding for partition, begun before tbe Clerk. Upon tbe allegation in tbe answer of sole seizin, tbe issues were transferred for trial at term time. Tbe Code, Sec. 256.

Tbe defendant claims under a deed 'to Samuel Corey from one tenant in common, purporting to convey tbe whole. *92 Tbere was evidence that Corey did not go into' possession until 1891 (and evidence by defendant that be took possession prior thereto, but not prior to 1883), and that certain of plaintiffs wbo are femes covert, married prior to becoming o f age.

The ouster of one tenant in common by another will not jbe 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 co-tenant not joining in the deed has been evicted, for one tenant in common can not thus make the possession adverse to his co-tenant. Registration of the deed does not have the effect of an ouster. Ferguson v. Wright, 113 N. C., 531; Page v. Branch, 97 N. C., 97, 2 Am. St. Rep., 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 comm on purporting to convey the whole. Twenty years sole permanency of the profits was not shown, nor was there uncontra-dicted 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.

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Clark, J.

This was a proceeding for partition, begun before tbe Clerk. Upon tbe allegation in tbe answer of sole seizin, tbe issues were transferred for trial at term time. Tbe Code, Sec. 256.

Tbe defendant claims under a deed 'to Samuel Corey from one tenant in common, purporting to convey tbe whole. *92 Tbere was evidence that Corey did not go into' possession until 1891 (and evidence by defendant that be took possession prior thereto, but not prior to 1883), and that certain of plaintiffs wbo are femes covert, married prior to becoming o f age.

The ouster of one tenant in common by another will not jbe 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 co-tenant not joining in the deed has been evicted, for one tenant in common can not thus make the possession adverse to his co-tenant. Registration of the deed does not have the effect of an ouster. Ferguson v. Wright, 113 N. C., 531; Page v. Branch, 97 N. C., 97, 2 Am. St. Rep., 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 comm on purporting to convey the whole. Twenty years sole permanency of the profits was not shown, nor was there uncontra-dicted 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.

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Bluebook (online)

40 S.E. 855, 130 N.C. 91, 1902 N.C. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardee-v-weathington-nc-1902.

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