#### JANE E. ROSCOE v. JOHN L. ROPER LUMBER CO.

(Decided February 28, 1899).

Demurrer, under Act 1897, Chap. 109 — Probate of Will of Nonresident Devising Land here — Tenancy in Common —Gonveyance by one Tenant in Common of Entire Interest — Adverse Possession and Ouster.

1. A motion to dismiss under Act of 1897, chapter 109, is substantially a demurer to tbe evidence, wbicb waives all abjection to its competency, and admits as true all that the evidence tends to prove.

2. Where a non-resident testator devises land in this State, and the record of the foreign Court of Probate, duly certified, contains the certificate of probate, which refers to the certified examinations of the witnesses, in accordance with the requirements of our Code, Section 2149, the whole forming one transaction, the exemplification of which and of the will being duly recorded in the county where the land lies, the will is sufficiently proved and passes the property.

3. Where a tenancy in common is shown, the possession of one is the possession of all — and the rule is the same, when one enters to whom a tenant in common has by deed attempted to convey the whole land.

4. The ouster of one tenant in common by another will not be 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 enters to whom a tenant in common has by deed attempted to convey the entire tract.

Civil ActioN, for recovery of an undivided half interest in land, and for partition by sale, tried before Norwood> J at G-ates Superior Court, Spring Term, 1898.

The plaintiff claimed a half interest in the land under the will of her husband, H. E. Roscoe, executed January 13, *431882, at bis borne in Mississippi, wbicb devised to ber all bis property. In 1853 J. E. Eiddick conveyed tbe land to said H. E. Eoscoe and S. W. Worrell. In 1865 Worrell alone conveyed said land by deed, purporting to pass tbe entire interest to other parties, under wbom, tbrougb mesne conveyances, in 1891, 1893 and 1896, tbe defendant derived title and was in adverse possession at tbe commencement of tbis suit, March 16, 1891.

Tbe defendant took a number of exceptions to tbe competency of plaintiffs evidence, wbicb were overruled by bis Honor. At tbe close of plaintiffs evidence, tbe defendant moved to dismiss under Act of 1891. Motion allowed, and judgment in favor of defendant, dismissing tbe action.

Plaintiff excepted and appealed.

Tbe evidence and points of contention are stated in tbe opinion.

Messrs. W. M. Bond and 8. G. Ryan, for plaintiff (appellant.).

Messrs. Pruden & Pruden, B. P. Aydlett and L. L. Smith, for defendant.

MONTGOMERY,, J.

In her complaint, tbe plaintiff alleges that she is tbe owner in common with tbe defendant in tbe lands described in tbe complaint, ber alleged interest being one-balf of tbe whole, and tbis action was commenced to have herself adjudged tbe owner of ber one-balf interest in common, and that tbe lands may be sold for a division by a commissioner appointed by tbe Court.

In their answer tbe defendants denied tbe claim of tbe plaintiff and also pleaded tbe statute of limitations of twenty years’ adverse possession under known and visible lines and *44boundaries, and the seven years statute under color and adverse possession. In the trial in the Superior Court, upon the conclusion of the plaintiff’s evidence, the defendants moved to dismiss the action under chapter 109, Acts 1897. The motion was allowed and from the order the plaintiff appealed to this Court. In support of her title, the plaintiff introduced a duly certified copy of a record from the Booh of Wills in the office of the Clerk of the Superior Court of Cates County, containing the will of II. E. Roscoe, who died in La Eayette County, Mississippi, and its probate, which will had been filed and recorded in the Clerk’s office of Cates County under section 2156 of The Code, as amended by chapter 393 of the Laws of 1885. She also introduced a copy of the will and probate thereof, certified from the Chancery Court of La Eayette County, Mississippi, The plaintiff then introduced a deed from J. R. Riddick to H. E. Roscoe, her deceased husband, and S. W. Worrell, in fee-simple, dated January 1st, 1853, to the land described in allegation III of the complaint; then a deed dated October 7th, 1865, from S. W. Worrell to Bond, Brady, Roberts and Wiley, purporting to convey the whole of the land in fee; and then successive deeds from these last grantees and their grantees to the defendant. The plaintiff further introduced in evidence sections 3, 4 and 5 of the complaint, which set out the ownership in common of the lands described therein between the plaintiffs and defendants, in the proportion of one-half to the plaintiff and the other half to the defendants, and then the deeds under which the defendants claim the entire interest in the lands and the entry of the defendants thereon; and also section 8 of the answer is introduced, in which it is admitted that the defendants have entered upon the lands conveyed to it under the deeds set out in section 5 of the complaint.

Upon the argument here, the counsel of defendants in*45sisted that tbe question of competency of a part of tbe evidence wbicb bis Honor received was a matter for tbe consideration of tbis Court, objection having been made to its admission in tbe Court below; but we think that tbe motion made by tbe defendant was, so far as tbe competency of tbe evidence is concerned, substantially a demurrer to tbe evidence, and that all objection to its competency was waived by tbe motion. A demurrer to tbe evidence admits as true all that tbe evidence tends to prove. Mining Co. v. Railroad, 122 N. C., 881; Bazemore v. Mountain, 121 N. C., 59; Whitley v. Railroad, 122 N. C., 987. But tbe defendant’s counsel insisted tbat if tbey were in error as to tbat position, and tbat tbeir motion to dismiss was a waiver of all objection to tbe evidence received by tbe Court below, yet tbe certificate -,'f probate of tbe will by tbe Clerk of tbe Court of Chancery of La Eayette County, Mississippi, did not show affirmatively tbat tbe will was executed according to tbe laws of North Carolina, and therefore tbat tbe lands situated in North Carolina did not pass to the plaintiff under tbe will. To an understanding of tbis contention it becomes necessary to examine tbe proceedings of tbe Mississippi Court in reference to tbe probate of tbe will. Tbe record of tbat Court was properly certified, and from it, it appears tbat tbe will was subscribed by two witnesses; tbat tbe witnesses subscribed in tbe presence of tbe testator and at his request; tbat tbe testator, at tbe time of bis signing tbe will, was of sound and disposing memory, and tbat be was over twenty-one years of age. Tbe examination of tbe witnesses to tbe will, however, was signed and certified by tbe Clerk separately from tbe certificate of probate made by tbe Clerk, and on tbat account the defendants contend tbat our statute, 2149 of Tbe Code, wbicb provides tbat tbe certificate of probate shall embody tbe substance of tbe proofs and examination, was not *46complied witb. The examination of the witnesses containing the essentials, according to tbe laws of North Carolina, for the order of probate of the will, was of the same date and in the same proceeding as the certificate of probate, and the certificate of probate set forth that the will had been duly proved as required by law. We think that the certificate of the Clerk was sufficient, for it referred to the proof of the will already made in the proceedings of the probate. But the defendants further insist that the certificate of the officer to the record of the proceedings did not refer to anything but the will and the certificate of probate; that it did not embrace the examination of the witnesses. That point is not directly presented by the appeal, for the record — the whole record— is in evidence, and without objection, so far as the appeal is concerned, and it embraces the examination of the witnesses to the will. However, we might as well say that we think the certificate of probate refers to -the certified examinations of the witnesses, and that the whole forms one transaction. The exceptions were not by any means frivolous; they were urged by counsel learned in the law, with zeal, but we can not concur in their view of the matter.

The probate of the will then being sufficient to pass the property, that part of the case being treated as upon demurrer to the evidence, we are brought to the consideration of the other branch of the case. The plaintiff’s evidence showed that her devisor and S. W. Worrell had been tenants in common of the lands, and that the defendants, at the time of the trial, and before, were in possession of the same, claiming by deeds purporting to convey the whole from successive grantees of Worrell. Now, the contention of the defendants is that, as- the plaintiffs proved on the trial that the defendants went into possession of the lands under deeds purporting to convey the whole interest, the presumption (section *47146 of Tbe Code) tbat sbe bad been in possession within twenty years before tbe bringing of this action, sbe having shown tbe legal title in her to her interest, bad been rebutted; and further, tbat from tbe plaintiffs evidence, tbe presumption arose tbat tbe defendant’s possession became adverse and began from 1866, tbe date of tbe execution of tbe first deed, conveying tbe entire estate, and tbat it was incumbent on the plaintiff to show possession in herself or some one from whom sbe claimed, witbin twenty years before tbe commencement of the action. However plausible this contention may appear, it can not be sustained upon reason, or under tbe decisions of this Court. There bad been a tenancy in common at one time between tbe plaintiff’s devisor arid Worrell, from whom, through successive conveyances, tbe defendants claim, and tbe plaintiff’s evidence did not show any adverse possession on tbe part of tbe defendants. It only went to prove entry by tbe defendants on tbe land (section 5 of tbe complaint, section 8 of tbe answer, put in evidence by tbe plaintiff). Tbe possesion of one tenant in common «is in law tbe possession of all. Covington v. Stuart, 77 N. C., 150; Neely v. Neely, 79 N. C., 478. And tbe rule is tbe same when one enters to whom a tenant in common has by deed attempted to convey tbe whole land. In tbe case of Ward v. Farmer, 92 N. C., 93, tbe Court said: “In tbe more recent case of Caldwell v. Neely, 81 N. C., 114, where there were two tenants in common and one of them undertook to convey tbe whole tract and a full estate therein to tbe defendant, and be took possession immediately and claimed to be absolute owner, it was held tbat tbe ouster of one tenant in common by another will not be presumed from an exclusive use of tbe common property and tbe appropriation of its profits to himself for a lessperiodtban twenty years; and the result is not changed when one enters to whom a tenant *48in common has by deed attempted to convey tbe entire tract.” To tbe same effect are tbe cases of Page v. Branch, 97 N. C., 97; Ferguson v. Wright, 113 N. C., 537.

There was error in tbe order dismissing tbe action.

New trial.