Opinion
(June Term, 1832.)
1. Where four sisters were seized of a tract of land in coparcenary, and three of them, who were sole and of full age, conveyed their shares in fee, and the fourth, who was covert and an infant, joined with her husband in a deed conveying to the same vendee all their interest in the land, to which the feme was not privately examined, and the vendee remained in possession of the whole tract and enjoyed all the rents and profits, without claim or demand, forty years, to the husband's death, and fifteen years after his death; it was held, that admitting the deed of the feme covert to be the color of title, the vendee and the feme covert were tenants in common, and that his possession was not adverse to her.
2. Is the deed of a feme covert, without a private examination, color of title, where her coverture appears upon its face? Quare.
3. The possession of one tenant in common is the possession of the other.
EJECTMENT, tried before his Honor, Martin, J., at ORANGE, on the spring circuit of 1829. On the trial the case was that Samuel Mooney died intestate in the year 1767, seized in fee of the lands (318) described in the plaintiff's declaration, leaving two sons and four daughters. Both of the sons died seized, and intestate and without issue, whereupon the lands descended upon the four sisters, of which the lessor of the plaintiff was one. In the year 1771 the three sisters of the lessor of the plaintiff conveyed all their estate in the premises to one Robert Neal. In the year 1772 the lessor of the plaintiff, having intermarried with Daniel Cloud, and being under the age of twenty-one years, jointly with her husband executed a deed conveying all their interest in the premises to the said Neal, but the lessor of the plaintiff was not privately examined touching her voluntary assent thereto. Under these conveyances Neal entered into the whole of the land, and remained in possession until his death in the year 1784, when the lands descended to his son Henry Neal, who, in the year 1824, by a deed of bargain and sale, conveyed the land to one Hinton, who, in 1826, by deed of bargain and sale, conveyed the same to the defendants; but Neal continued in possession until his death in the year 1826. Daniel Cloud died in 1812. From the year 1772 until the year 1827 the defendants, and those under whom they claim, enjoyed all the rents and profits, without any demand for an account, and no claim to the premises was made by the lessor of the plaintiff until the year 1827, except an ineffectual attempt in the year 1805, to obtain a partition of the lands, by petition filed by Cloud and wife against Henry Neal in the county court. Between the year 1814 and the year 1824, Henry Neal executed conveyances for parts of the land to different persons, but remained in uninterrupted possession, and before the year 1824 had taken reconveyances of the whole to himself. His widow remained upon the premises until possession was taken by the defendants.
Winston and Gaston for plaintiff.
Badger contra.
Martin, J., instructed the jury:
1. That the deed of Daniel Cloud and wife was color of title.
2. That if the defendants were in the actual adverse possession for seven years after the death of Daniel Cloud, the statute of limitations was a bar to the plaintiff's right.
A verdict was returned for the defendants, and the lessor of the plaintiff appealed. (319)
after stating the case, proceeded: It must be (325) admitted that Robert Neal and Henry Neal have been in possession of the land from the year 1772 until the year 1826, under a valid title from the three sisters of Ann Cloud, and perhaps a color of title from Ann Cloud herself. But it does not follow that their possession has been adverse to Ann Cloud since her discoverture.
All the title Daniel Cloud had in the land, and no more, was by him conveyed to Robert Neal; the residue of the estate was in Ann, his wife, her deed being inoperative on account of her coverture and infancy. Admitting that deed to be color of title, nothing passed thereby. It could only as color of title give efficacy to an adverse possession of seven years. It is, therefore, all-important to ascertain whether in this case there has been a possession adverse to the title of the lessor (326) of the plaintiff.
When Daniel Cloud died, how did the rights of the parties stand? Henry Neal was in possession of the land, and had title to three-fourths of it, claiming from Ann Cloud's three sisters. Ann Cloud had title to one-fourth of it, but was not in actual possession. She and Henry Neal, then, were tenants in common; therefore, his possession was her possession. I need not cite authorities to show that the possession of one tenant in common is the possession of the other. It is for that reason that the judges have had recourse to ousters by presumption, as in the case of Fishar v. Prosser, Cowp., 217. There the statute of limitation would have been a bar, but Lord Mansfield considered the possession of one tenant in common to be the possession of the other, and therefore the statute of limitation did not run. But as there had been a possession of thirty-six years, he said an ouster might be presumed from that length of time, and that the statute would run upon a presumed ouster, although, in point of fact, it was admitted that no ouster had ever happened.
It is a question on which the profession has been much divided, whether an actual adverse possession for seven years, unattended by color of title, was not a bar. That question does not now arise. But it will simplify the case to consider it unencumbered by a color of title, merely upon the defendant's possession, because it is the possession and not the color of title which grows and ripens into a good title. Then, upon the death of Daniel Cloud, the deed as to his wife being a nullity, she had a right of entry, because she had a right of entry in the year 1771, which was preserved by her intermediate coverture. Zouch v. Parsons, 3 Burr., 1805. Upon the death of her husband in 1812, she was entitled to one-fourth part of the land, as one of the heirs at law of her brother James. Henry Neal was at the same time entitled to three-fourths of the land, claiming under the other heirs of James. It follows that Henry Neal and Ann Cloud were, in 1812, tenants in common of the land in question, and that Henry Neal, as such tenant, remained in possession from that time until the year 1826. I think no doubt can be entertained that his possession was the (327) possession of Ann Cloud. Of course, it was not adverse to her claim, and as it was not adverse, it is not a bar, even admitting the deed executed by her to be color of title. Therefore, although there has been color of title and a possession of more than seven years in Neal, and those claiming under him, as that possession was not adverse, the plaintiff's title is not barred. I think that the case is not affected by the conveyances made by Henry Neal; possession did not follow them.
PER CURIAM. Judgment reversed.
Cited: S. c., 15 N.C. 290; Halford v. Tetherow, 47 N.C. 398; Day v. Howard, 73 N.C. 5, 6; Caldwell v. Neely, 81 N.C. 117; Withrow v. Biggerstaff, 82 N.C. 84; Ward v. Farmer, 92 N.C. 97, 98; Hicks v. Bullock, 96 N.C. 171; Locklear v. Bullard, 133 N.C. 266; Allred v. Smith, 135 N.C. 452; Bullin v. Hancock, 138 N.C. 201; Lumber Co. v. Cedar Works, 165 N.C. 85; Lumber Co. v. Cedar Works, 168 N.C. 351; Alexander v. Cedar Works, 177 N.C. 142; Adderholt v. Lowman, 179 N.C. 549; Bradford v. Bank, 182 N.C. 228; Crews v. Crews, 192 N.C. 686.