#### R. W. CLARY et als. v. S. H. HATTON et al.

(Filed 9 March, 1910.)

1. Tenants in Common — Adverse Possession — Ouster—Evidence.

Tenants in common hold their estate by unity of possession, and the possession of one inures to the benefit of his cotenants, not only as concerns themselves, but also as to strangers; and while a tenant in common in possession may so act as to amount to an actual ouster of his cotenants and put them to their act of ejectment, it must be clear, positive, and equivalent to an open denial of the cotenants’ rights, and to putting them out of seizin.

2. Same — Presumptions—Rebuttal.

When the sole adverse possession of one as tenant in common is relied on to establish title by his heir at law, his declarations while in possession are competent evidence as against himself or those claiming under him to explain and qualify his possession and to show its true character; and when there is evidence that he had thus said eight years before his death that he only claimed certain interest in the locus in quo as tenant in common, and that his sisters owned the other interests, it would tend to rebut any presumption of an ouster at any time prior to such declarations.

Appeal from Qoolee, J., at December Term, 1909, of MabtiN.

Proceeding in partition. Tbe plaintiffs allege tbat tbey are tenants in common witb defendants of the town lot described; tbat S. R. Clary as sole beir of Sarah Clary is entitled to one-third undivided interest; tbat tbe other plaintiffs, W. A. Ellison, S. H. Ellison, J. R. Ellison, Susan Roberson and Belle. Goddard, are entitled to one-third as tbe heirs of Belle Ellison, and tbat defendants S. H. Hatton and Mary B. G-urganus are entitled to one-third as tbe heirs of John ITatton.

Tbe defendants pleaded sole seizin. At conclusion of plaintiffs’ evidence, motion to nonsuit was sustained. Plaintiffs excepted and appealed.

Harry W. Stubbs for plaintiffs.

Martin & Oritcher and Winston & Everett for defendants.

*108BeowN, J.

It is admitted, in tbe pleadings tbat tbe lot in controversy is situated in tbe town of "Williamston, tbat it is known as tbe Hatton place, and tbat Samuel Hatton, tbe common ancestor of plaintiffs and defendants, remained in possession until bis death.

It is admitted in tbe record tbat Samuel Hatton and bis wife, Susan, left three children, John H. Hatton, Sarah Clary and Belle Ellison. It is further admitted tbat S. R. Clary, one of tbe plaintiffs, was tbe only son and heir at law of Sarah Hatton, who afterwards intermarried with R. W. Clary, and tbat tbe said Sarah Hatton was tbe daughter of Samuel and Susan Hatton; tbat tbe other plaintiffs are tbe only children and heirs at law of Belle Hatton, who afterwards intermarried with J. H. Ellison, and tbat she, also, was tbe daughter of Samuel and Susan Hatton; tbat tbe defendants S. H. Hatton and Mary ■ B. Grurganus are tbe only children and heirs at law of John II. Hatton, who was tbe brother of tbe said Belle Ellison and Sarah Clary and tbe only son of Samuel and Susan Hatton.

There is evidence tending to prove tbat Samuel Hatton and bis wife Susan and children aforesaid resided on this lot for ten years up to Samuel Hatton’s death, in 1863; tbat this occupation as a residence was continued by bis widow and children after bis death; tbat tbe widow continued to reside there for twenty years up to her death in 1872; and tbat from 1872 to bis death in 1908 John Hatton, tbe defendant’s father, continued to reside there. Since bis death tbe defendants, bis children, have been in possession. This proceeding was instituted 8 April, 1909. .

Tbe evidence of continuous occupation by Samuel Hatton- and bis successors up to tbe date of this proceeding is more than sufficient to put title out of State, even if such evidence be necessary, in a proceeding of this kind, where sole seizin is pleaded and tbe defendants claim title and right of possession to tbe whole property. We think tbat tbe only question presented relates to tbe character of John Hatton’s possession from death of bis mother in 1872 up to tbe time of bis death. Is there evidence sufficient to go to tbe jury tbat John Hatton’s possession was permissive and inured to tbe benefit of bis sisters; or was it adverse, so tbat tbe law will presume such an ouster as would have enabled bis cotenants to bring ejectment against him?

It is elementary tbat tenants in common bold their estates by unity of possession, and tbat tbe possession of one inures to tbe benefit of all bis cotenants, not only as concerns themselves, but also as to strangers. 2 Blackstone, 192.

Nevertheless, one tenant in common may bold such possession *109of tbe common property as will amount to an actual ouster of bis cotenants, so as to put them to their action in ejectment to be let into possession. But such possession, in order to have that effect, must be manifested by some clear, positive and unequivocal act equivalent to an open denial of the cotenants’ rights, and to putting them out of the seizin. These principles of law are so fully and learnedly discussed by Mr. Justice Walker in the recent case of Dobbins v. Dobbins, 141 N. C., 213, that it is useless to further elaborate them.

"We think there is abundant evidence to go to the jury that the possession of defendant’s ancestor, John Hatton, was never adverse to the rights of his sisters, or to these plaintiffs, and that, consequently, He acquired no title by reason of his possession after his mother’s death in 1872 up to his own death in 1908.

The evidence tends to prove that John Hatton’s possession was the continuation of that of his parents; that no deed can be found under which he claims; that he told one Keith eight years before he died, and while he was then living on the lot, that he only claimed or owned oner-third of the lot, and his sisters each owned a third, and for that reason he had not improved it and did not wish to spend any money on it.

These declarations of John Hatton are inconsistent with a claim of sole ownership or exclusive possession, and are competent, not to impeach any title that he had already acquired by twenty years’ possession, but to show that in reality he had never acquired any title by such possession, because his possession during the entire period it continued, from 1872 to the day the declaration was made, was of, a permissive and not of an adverse character; and that it was with his sisters’ consent. This would tend to rebut any presumption of an ouster at any time prior to such declaration.

John Hatton could have remained there a century, had he lived so long, with the consent of his sisters, and acknowledging their title, without putting them to an action to assert their rights. As long as he acknowledged their title they had -no cause of action.

The declarations of John Hatton, made eight years before _ his death in 1908, and while he lived on the property, qualified and explained his entire previous possession. His declaration 'in 1900 in acknowledgment and recognition of his .sisters’ title, is evidence that prior to then he had never claimed adversely to them. It is elementary learning that the declarations and conduct of a person in possession of land are always competent *110as against bimself or those claiming under him to explain and qualify his possession and to show what was the trae character of such possession.

Professor Greenleaf says: “In regard to the declarations of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion; but it is now well settled that declarations in disparagement of the title of the declarant are admissible as original evidence. Possession is prima, facie evidence of seizin in fee simple; and the declaration of the possessor, that he is tenant to another, it is said, makes most strongly against his own interest, and therefore is admissible.” 1 Greenleaf on Evidence, sec. 109; 9 Am. and Eng., p. 8; Yeates v. Yeates, 76 N. C., 142; Kirby v. Masten, 70 N. C., 540;. Hilliard v. Phillips, 81 N. C., 104.

We are of opinion that his Honor erred in sustaining the motion to nonsuit.

New trial.