MARGARET A. NEELY and others v. JULIUS A. NEELY and others.
Tenants in. Common — Adverse Possession.
The possession of one tenant in common being the possession of all, nothing less than a sole possession of twenty years by a co-tenant, without any demand or claim of another co-tenant to rents, profits or possession, -he being under no disability during the time, will raise a presumption in law that such sple possession is rightful, and protect it.
(Covington v. Stewart, 77 N. C. 148; Linker v. Benson, 67 N. C. 150, cited and approved.)
Special Pkooeeding commenced on the 7th of September, 1874, in the Probate Court and transferred to and heard at January Special Term, 1878, of Row AN Superior Court, before Kerr, J.
The plaintiffs filed a petition for partition of real estate, alleging that they and the defendants were tenants in common of the same. The defendants denied the tenancy in common and pleaded adverse possession for twenty years, sole seizin, and statute of limitations. The facts are as follows:—
In the year 1831, Alexander Neely being the owner in fee of the land in controversy died leaving a last will and testament in which he devised said land to two of his children, Julius and Euphemia; the latter died in August, 1843, at the age of about twelve years, leaving as her only heirs at law the said Julius Neely, and Nathan and Franklin Neely, who were her brothers. The land was rented by the guardian of the said children of the testator after the death of his widow, and the rents collected by the guardian and divided among the children ' entitled, up to the 8th of March, 1849.
The said Julius became of age on the 28th of February, 1849, and was in possession of the land from the said 8th *479of March-until his death in 1874, during which period he paid the taxes upon the same, and received the rents without accounting to any one; and it was admitted that during his life time he bought the interest of his brother Nathan in said land.
The said Franklin died in 1858, devising his lands to his three children, the plaintiffs in this suit, who now claim the interest of their ancestor in the land which descended to him as one of the heirs at law of the said Euphemia,, and insist that they are tenants in common with the defendants (who are in possession as the heirs at law of the said Julius) and are therefore entitled to one-sixth of the land.
There was no evidence showing a demand upon Julius by Franklin Neely during his life time or by the guardian of his children after his death, for the rents of the land or any part thereof; nor was there any evidence of a refusal on the part of Julius Neely to account for the same.
Upon these facts His Honor was of the opinion that, the defendants had failed to sustain their pleas, and adjudged that they were not sole seized but tenants in common with the plaintiffs of the land in controversy, and ordered the case to be remanded to the end that a writ of partition may issue, from which ruling the defendants appealed.
Messrs. J. S. Henderson and W. H. Bailey, for plaintiffs,
cited and remarked upon Linker v. Benson, 67 N. C., 150; Day v. Howard, 73 N. C.,1; Covington v. Stewart, 77 N. 0., 148; Johnson v. Winslow, 63 N. C., 555; Howell v. Buie, 64 N. C., 447; Benhow v. Bobbins, 71 N. C., 338; Cloud v. Webb, 3 Dev. 317; 4 Dev. 290.
Mr. Kerr Craige, for defendants.