Tharpe v. . Holcomb

35 S.E. 608, 126 N.C. 365, 1900 N.C. LEXIS 246

• Court: Supreme Court of North Carolina
• Decided: April 17, 1900
• Status: Published

Opinion

Faircloth, C. J.

This is an action of ejectment, and the plaintiff and defendant are .tenants in common of the land in controversy. The only material question to consider is whether the defendant has title by adverse possession under .-color of title by force of the seven-year statute', Code, sec. 141.

It is conceded that the defendant and those under whom he •claims have been in continuous, possession of the premises for more than seven- years under' color. Was thei possession ■adverse ?

The possession of one tenant in common is presumed to be the possession of all the tenants.

An adverse possession for twenty years by one tenant in ■common is necessary to bar his co-tenants. Hicks v. Bullock, 96 N. C., 164.

The evidence is that “Angeline (defendant’s vendor) entered into possession of the land, claiming’ it as her own ■under the will of Eleana. Elliott, * * * claiming it ■adversely to all others, claiming it as her own under said will.” This- proof shows only quiet, undisturbed possession, ■and that is not inconsistent with a holding for all the tenants in common. It does not indicate a hostile attitude of the occupant towards bis co-tenants as contemplated by tire statute, Code, sec. 141. To that end, there must be some act done between the parties from which the jury or Court can see that a hostile relation exists — that tire defendant’s intent to hold alone is manifested to the co-tenants. Then the statute begins to run. If the co-tenants attempt to'assert their claim, as to enter, or to demand an account for rents, etc., which is resisted by tire occupant, then his possession becomes adverse, and, if it continue for seven years, his title will ripen against his co-tenants. Breeden v. McLaurin, 98 N. C., 307. This requirement is not met by the facts in the present case, and it follows that there is error.

The judgment might be reformed here if the record furnished tire necessary information, but it does not; and a new trial is necessary in order that the proper parties may be made, and their rights and interests ascertained and declared.

New trial.