#### John Thomas and Wife, et al. v. Nancy Garvan.

A proceeding for partition at law, cannot take place, except there be a common possession, and a common possession is always implied from a common title until the contrary be shown.

But if an actual ouster bo made by one tenant in common of his co-tenant, thero is no longer a common possession and the remedy is not by petition for partition, but by Ejectment.

This was a petition for partition, to which the defendant pleaded : 1st. That site was not tenant in common with the petitioners, 2dly. That site was not tenant in common in possession wTith petitioners. 3dly. That she was in the sole adverse possession of the premises. To these pleas replications were entered. The petition was filed Fall term 1828, of Bladen Superior Court, by Sarah Mulford, who died pending tiie suit, and the present petitioners were made parties with leave to prosecute.— On the trial before Dasiiex, Judge, at Spring term, 1831, the defendant produced a conveyance from Ephraim Mulford and Sarah his wife, the ancestors of petitioners, dated 4th January, 1802, to Richard Garvan the husband of the defendant for all their interest in the premises.— Sarah Mulford, had. nevey been privately examined touch-*224iug tbe execution of this deed. Ephraim Mulfonl, the husband, died in 1807'. Richard Garvan died in 1827, having continued in the actual, sole and exclusive possession of the premises from the date of the deed in 1802 until his death and then devised them to the defendant, who continued in possession up to the filing of this petition. Sarah Mulfonl died in 1829, leaving the present petitioners her heirs.

It was further proved that Ephraim MuLford before the sale to Garvan resided with him and they cultivated the disputed lands together. After the death of Mulfonl his widow resided 4 or 5 miles from the disputed land.

The jury were instructed, that if the defendant and her husband during his life had continued in adverse possession of the land under the deed from Mulford and wife, for seven years from the death of Mulfonl, the entry of the petitioners was barred, and they were not tenants in common with petitioners and consequently were not entitled to have partition of the lands. They were also further instructed, that if they had been tenants in common, yet if the mother of the petitioners had been actually ousted of the possession by Garvan,and lie, and those claiming under him, were in the sole possession claiming adversely to her, the petition could not be sustained, but the plaintiffs were put to their action of ejectment.

The jury, under the instructions, returned a verdict for the defendant, and the petition was dismissed with costs, from which judgment the plaintiffs appealed.

Dever eux for plaintiffs.

Badger for defendants,

cited Pierce v. Myrick, (1 Dev. 345,) Morissey & Wife v. Bunting, fib. 3.) Doc v. Pros-ser, f Cowp. 219.)

Gaston, Judge.

A proceeding for partition at law, cannot take place except there be a common possession, ami a common possession is always implied from a common title until the contrary be shown. But if an actual ouster be made by one tenant in common with his co-tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety.--» *225The sole enjoyment of the property by one of the tenants is not of itself, an ouster, for his possession will be understood to be in conformity with right, and the possession of one tenant in common, as such, is in law the possession of all the tenants in common. But the sole enjoyment of property for a great number of years, without claim from another, having right and under no disability to assert it, becomes evidence of a title to such , . , i.,- . - .... sole enjoyment; and this not because it clearly proves the acquisition of such a right, but because from the an- . . . tiquity ot the transaction, clear proof cannot well be obtained to ascertain the'truth, and public policy forbids a possessor to bo disturbed by stale claims when the testimony to meet them cannot easily be hnd. Where the . „ . law prescribes no specific bar from length of time, twenty years have been regarded in this co untry as constituíing the period for a legal presumption of such facts as will sanction the possession and protect the possessor. We think the Judge who tried this cause was correct in charging the jury that the twenty-one years ex-elusive possession of the defendant, and her deceased husband, since the petitioner became discovert, did raise the legal presumption of an ouster; that the verdict of the jury, upon that instruction was right, and that there is no error in the judgment which was rendered against the petitioner.

The sole on-j°yment °f tlle tenanMn yCommon> is not of itself an ouster of his co-tenant, the Possess!on of one being the possession of all. But t1le S0J° elW~ mont for a great number of years, (sa7 s„x) claim from anothier having right, af d, .™cler, n0 disability, becomes evidence and raises the legal presumption of an oustor>

The judgment of the court below, must be affirmed with costs.

Per Curiam — Judgment ateirmed.