Aveky, J.:
Where the testimony relied on in an action for the possession of land to establish the plaintiff’s title demonstrates incidentally the fact that a person or persons,
other than the defendant, hold as tenants in common with plaintiff all of the undivided interest not held by the latter, the action enures to the benefit of such co-tenants as against a trespasser claiming sole seizin in himself, entitling the nominal plaintiff to recover, for himself and them, the whole.
Allen
v.
Sallinger,
103 N. C., 14;
Gilchrist
v.
Middleton,
107, N. C., 663;
Foster
v.
Hackett,
at this Term. When in deference to the ruling of the Court, whether erroneous or not, the co-plaintiff Reeves submitted to judgment of nonsuit and appealed, the subsequent proceedings must be considered just as though Reeves had not joined the heirs of H. M. Moody, but the action had been originally brought and subsequent^ prosecuted by them only. The whole of the land in controversy was covered by the grant to John Gray Blount and was transmitted by successive conveyances to M. S. Temple, Thomas Johnson and Alexander Williams, whereupon said Temple conveyed his undivided third to said Johnson and Williams. A paper-writing had been offered purporting to be a copy of the wil-1 of Alexander Williams, in which he devised his undivided half interest to his wife, C. D. Williams. If this instrument had been admitted the will of C. D. Williams, the evidence that she did not marry again and the deed of her executor, acting under a power contained in her will, to Link, with Link’s deed to Reeves, would have shown
prima facie
title in Reeves as tenant in common with the plaintiffs and transmitted from the same source. After eliminating the evidence offered to trace title to one undivided half from Alexander Williams to Reeves, the testimony, if sufficient — as the jury determined it was — -to show that the title to the other undivided half passed by successive conveyances from John Gray Blount to the plaintiffs, necessarily demonstrated the fact that the heirs or assignees of Alexander Williams, though there was no
evidence tending to designate or identify them, succeeded to his rights and held through the same line of mesne conveyances a half interest in common with the three children and heirs at law of H. M. Moody. If the heirs of IT. M. Moody had not been able to ascertain whether any or, if so, what disposition had been made by Alexander Williams of his interest, they could sue for the whole in their own names without explanation or with a specific averment that they were bringing the action in behalf of the heirs at law of Alexander Williams, who were not known by name or too numerous to mention, and in either way, upon showing, incidentally to the deraignment of their own title, that Alexander Williams was the owner of the other undivided half, and that he was dead, might recover the whole as against a trespasser denying the plaintiff’s title in his answer and relying on a deed with possession to show title under an adverse right.
Foster
v.
Hackett, supra.
The recovery would ultimately enure to the benefit of those who might show title through him whether by descent or purchase.
The defendant claimed under a Sheriff’s deed for taxes, adverse in its very incipiency to the claim of the heirs of Moody and the representatives of Alexander Williams. He was, therefore, at the 'beginning of his occupancy a trespasser, setting up an invalid tax deed under which he might acquire title by the laches of the true owners. If his possession did not ripen his title to the whole or any part, then he continued to be a trespasser up to the moment when the action was brought. The instructions of the Court upon the three issues v’ere well calculated to enable the jury to apply the law to the testimony and arrive at and announce their conclusion not only as to what was the actual interest of the plaintiffs, but whether the defendant w'as a trespasser or co-tenant.
There was a conflict in the evidence bearing upon the question whether the defendant entered- and put the statute in motion before the death of PI. M. Moody, in which event it would have continued to run against his infant child, or whether the occupancy began after his death, which occurred in the year 1870, so as to relieve the youngest child, who had arrived at maturity within three years before the summons issued, from the bar of the statute. It was therefore the province of the jury to determine, as they were told to clo, whether the plaintiffs were in fact entitled in their own right to one undivided half, or -whether the rights of all except the youngest child were barred. It was the duty of the Court to require such specific findings in order to protect the rights of the parties against the effect of the estoppel of the judgment, and to enable the infant heir, if all others were barred, to recover his interest.
Allen
v.
Sallinger, supra; Dickens
v.
Long,
109 N. C., 165. If, instead of responding to the second issue, “Yes, as to one undivided half,” the jury had answered that the youngest of the heirs of Ii. M. Moody was the owner of one undivided sixth, then, under the instruction of the Court, it would have been their duty to find, in passing upon the third issue, that the defendant was not a trespasser, because his title had matured by possession against all of the heirs who were -not laboring under disability. If such had been the findings there would have been error in rendering a judgment for the whole, because, it would have been apparent to the Court that the defendant had acquired by possession, and one of the plaintiffs by descent, such interest as entitled that particular plaintiff to be let into possession only to the extent of his interest with the defendant.
But when the jury found that the defendant’s possession was still wrongful it necessarily meant that he could have
acquired no interest whatever by color of title, because if lie had occupied seven years continuously, either before or after the death of H. M. Moody, he must have acquired under the instruction given, as against those heirs, all but one undivided sixth held by the youngest. It followed, therefore, that if the jury determined that the two older Moody heirs were not bound by the defendant’s possession it could not have been an occupancy of such nature and duration as to mature title against the heirs or representatives of Alexander "Williams, to whom the plaintiffs, in the dcraignment of their own title, had traced the other undivided half.
The case of
Lenoir
v.
Mining Co.,
106 N. C., 473, which was cited to sustain the contention of the defendants, is .not analogous to this. The plaintiffs there sued for the whole, while the defendants in their answer set up title to one undivided third of the land and admitted that the plaintiffs were co-tenants with them. The plaintiffs there offered paper title to one undivided third and testimony tending to show title in themselves to the other interest also, but by possession under color. No evidence was submitted tending to prove that any person other than the plaintiffs could deraign title from the same source to the other two-thirds.
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Aveky, J.:
Where the testimony relied on in an action for the possession of land to establish the plaintiff’s title demonstrates incidentally the fact that a person or persons,
other than the defendant, hold as tenants in common with plaintiff all of the undivided interest not held by the latter, the action enures to the benefit of such co-tenants as against a trespasser claiming sole seizin in himself, entitling the nominal plaintiff to recover, for himself and them, the whole.
Allen
v.
Sallinger,
103 N. C., 14;
Gilchrist
v.
Middleton,
107, N. C., 663;
Foster
v.
Hackett,
at this Term. When in deference to the ruling of the Court, whether erroneous or not, the co-plaintiff Reeves submitted to judgment of nonsuit and appealed, the subsequent proceedings must be considered just as though Reeves had not joined the heirs of H. M. Moody, but the action had been originally brought and subsequent^ prosecuted by them only. The whole of the land in controversy was covered by the grant to John Gray Blount and was transmitted by successive conveyances to M. S. Temple, Thomas Johnson and Alexander Williams, whereupon said Temple conveyed his undivided third to said Johnson and Williams. A paper-writing had been offered purporting to be a copy of the wil-1 of Alexander Williams, in which he devised his undivided half interest to his wife, C. D. Williams. If this instrument had been admitted the will of C. D. Williams, the evidence that she did not marry again and the deed of her executor, acting under a power contained in her will, to Link, with Link’s deed to Reeves, would have shown
prima facie
title in Reeves as tenant in common with the plaintiffs and transmitted from the same source. After eliminating the evidence offered to trace title to one undivided half from Alexander Williams to Reeves, the testimony, if sufficient — as the jury determined it was — -to show that the title to the other undivided half passed by successive conveyances from John Gray Blount to the plaintiffs, necessarily demonstrated the fact that the heirs or assignees of Alexander Williams, though there was no
evidence tending to designate or identify them, succeeded to his rights and held through the same line of mesne conveyances a half interest in common with the three children and heirs at law of H. M. Moody. If the heirs of IT. M. Moody had not been able to ascertain whether any or, if so, what disposition had been made by Alexander Williams of his interest, they could sue for the whole in their own names without explanation or with a specific averment that they were bringing the action in behalf of the heirs at law of Alexander Williams, who were not known by name or too numerous to mention, and in either way, upon showing, incidentally to the deraignment of their own title, that Alexander Williams was the owner of the other undivided half, and that he was dead, might recover the whole as against a trespasser denying the plaintiff’s title in his answer and relying on a deed with possession to show title under an adverse right.
Foster
v.
Hackett, supra.
The recovery would ultimately enure to the benefit of those who might show title through him whether by descent or purchase.
The defendant claimed under a Sheriff’s deed for taxes, adverse in its very incipiency to the claim of the heirs of Moody and the representatives of Alexander Williams. He was, therefore, at the 'beginning of his occupancy a trespasser, setting up an invalid tax deed under which he might acquire title by the laches of the true owners. If his possession did not ripen his title to the whole or any part, then he continued to be a trespasser up to the moment when the action was brought. The instructions of the Court upon the three issues v’ere well calculated to enable the jury to apply the law to the testimony and arrive at and announce their conclusion not only as to what was the actual interest of the plaintiffs, but whether the defendant w'as a trespasser or co-tenant.
There was a conflict in the evidence bearing upon the question whether the defendant entered- and put the statute in motion before the death of PI. M. Moody, in which event it would have continued to run against his infant child, or whether the occupancy began after his death, which occurred in the year 1870, so as to relieve the youngest child, who had arrived at maturity within three years before the summons issued, from the bar of the statute. It was therefore the province of the jury to determine, as they were told to clo, whether the plaintiffs were in fact entitled in their own right to one undivided half, or -whether the rights of all except the youngest child were barred. It was the duty of the Court to require such specific findings in order to protect the rights of the parties against the effect of the estoppel of the judgment, and to enable the infant heir, if all others were barred, to recover his interest.
Allen
v.
Sallinger, supra; Dickens
v.
Long,
109 N. C., 165. If, instead of responding to the second issue, “Yes, as to one undivided half,” the jury had answered that the youngest of the heirs of Ii. M. Moody was the owner of one undivided sixth, then, under the instruction of the Court, it would have been their duty to find, in passing upon the third issue, that the defendant was not a trespasser, because his title had matured by possession against all of the heirs who were -not laboring under disability. If such had been the findings there would have been error in rendering a judgment for the whole, because, it would have been apparent to the Court that the defendant had acquired by possession, and one of the plaintiffs by descent, such interest as entitled that particular plaintiff to be let into possession only to the extent of his interest with the defendant.
But when the jury found that the defendant’s possession was still wrongful it necessarily meant that he could have
acquired no interest whatever by color of title, because if lie had occupied seven years continuously, either before or after the death of H. M. Moody, he must have acquired under the instruction given, as against those heirs, all but one undivided sixth held by the youngest. It followed, therefore, that if the jury determined that the two older Moody heirs were not bound by the defendant’s possession it could not have been an occupancy of such nature and duration as to mature title against the heirs or representatives of Alexander "Williams, to whom the plaintiffs, in the dcraignment of their own title, had traced the other undivided half.
The case of
Lenoir
v.
Mining Co.,
106 N. C., 473, which was cited to sustain the contention of the defendants, is .not analogous to this. The plaintiffs there sued for the whole, while the defendants in their answer set up title to one undivided third of the land and admitted that the plaintiffs were co-tenants with them. The plaintiffs there offered paper title to one undivided third and testimony tending to show title in themselves to the other interest also, but by possession under color. No evidence was submitted tending to prove that any person other than the plaintiffs could deraign title from the same source to the other two-thirds. The defendant did not offer a regular chain of title, but introduced a paper purporting to convey to it one undivided half interest in order to show color of title and testimony tending to prove possession under it. As between the co-tenants it was held that the defendant could establish his title to an undivided one-third by possession under color, and that while a co-tenant could not be barred by adverse occupancy for a shorter period than twenty years still a possession might be adverse to some undivided interests, so as to mature title in seven years as to them, though not adverse as to others.
In our case, though the defendant claimed sole seizin, the Judge who presided in the Court below, with a very clear perception of the difference between the two, submitted the second issue in two aspects of the testimony, and made the finding on the third conform to the response to the second. If the defendant’s title had not matured as to either of the three plaintiffs then,
ex
necessitate, it followed that he had acquired nothing by his occupation, and was still a trespasser as to the plaintiffs and all who were shown to have derived title from the same source. If the defendant had acquired title as to two-sixths he was not a trespasser, but a co-tenant and
non
constat, but that his occupancy had ripened into title as to 'Williams’ half interest also. So if the answer to the second issue had been “One-sixth” that to the third would have been “No,” and the judgment would in that event have ordered that the youngest of the three plaintiffs be let into possession with the defendant.
The practical difference between the present status of the case and that which would have been presented had the will of Alexander Williams been admitted and the finding followed that Reeves and the Moody heirs were the owners, is that, now, the plaintiffs may be concluded by air adjudication from denying that the title to one undivided half interest descended to the heirs and devisees of Alexander Williams, and that the plaintiffs are the owners of the other half.
The judgment of nonsuit being set aside and a now trial granted, the plaintiff Reeves may, on motion, have the decree amended so as to declare that title to one-half descended to the heirs or passed to the devisees, if any, of said Williams, and that plaintiffs hold the other half in fee. ' If the heirs of Moody do not contest the right of Reeves he can again submit to nonsuit and enter with them. If tliej7 resist his claim, or if he prefers to have the
matters adjudicated so as to operate by way of estoppel, he can have the cause, as to all of the parties before the Court, retained till it shall have been ascertained by a jury whether the interest of Alexander Williams has been transmitted by mesne conveyances to him.
For the reasons given we hold on the defendant’s appeal there was No Error.