#### JOHN O. McKEEL, Administrator, v. HENRY HOLLOMAN.

(Filed 1 October, 1913.)

1. Partition — Parties—Interpretation of Statutes.

One "who claims an undivided- interest in lands in proceedings to sell them and divide the proceeds among tenants in com*133mon and to pay debts, etc., may be properly made a party to sucb proceedings. Revisal, secs. 410, 414, 76.

2. Partition — Tenants in Common — Burden of Proof.

One who has been made a party to proceedings to sell lands for the purpose of dividing the proceeds among tenants in common, and who claims an undivided interest in the lands, which is denied, has the burden of proof upon the issue of his alleged ownership; and may not recover in the absence of any sufficient evidence tending to establish it.

3. Trials — Leading Questions — Courts—Appeal and Error.

Leading questions asked on direct examination may be excluded by the trial judge, in his discretion, from which no appeal ordinarily lies.

4. Tenants in Common — Adverse Possession — Limitation of Actions.

The law raises a legal presumption of title in one who has been in adverse possession of lands, receiving the rents and profits for twenty years or more, which will bar the entry of another claiming an undivided interest therein as tenant in common; for the adverse occupancy of the lands puts the claimant to his action, and if continued for that time without any assertion of his right, it will be lost.

Appeal by defendants from 0. H. Allen, J., at May Term, 1913, of GreeNE.

This is a proceeding for the sale of land for partition and to pay the debts of the two original tenants in common out of the proceeds 'of sale, the balance to be divided among the tenants according to the several and respective interests. All parties have been duly brought into court by the service of process, as the court finds and adjudges in its order, 15 October, 1912. It was ascertained that one Henry Holloman claimed a one-third interest in the land, as heir to Nancy Holloman, daughter of himself and his wife, Eachel Holloman (formerly Eachel Evans), who was the daughter of John»Evans and his wife, Harriet Evans (formerly Harriet McKeel), who was one of the original tenants in common. Henry Holloman’s wife predeceased him.

The court, on motion, ordered that Henry Holloman be made a party, to the end that his claim might be determined and the land sold free from any claim upon the title. He was brought *134in, and pleaded tbat be was owner of one-tbird of tbe land. Tbe court, thereupon, directed tbe following issue to be submitted to tbe jury: “Has tbe defendant Henry Holloman any interest in tbe land?” Under tbe instructions of tbe court, tbe jury answered tbis issue in tbe negative. There was no objection to tbe issue. Judgment on tbe verdict, and appeal by Henry Hollo-man, tbe intervenor. Tbe other facts are stated in tbe opinion of tbe Court.

Finch & Connor and L. V. Morrill for plaintiff.

George M. Lindsay and L. I. Moore for defendant.

WalKeb,, J.,

after stating tbe case: . We find no error in the record.' Tbe court properly ordered or permitted Henry Hollo-man to be made a party. Tbe Code provides tbat any person may be made a party who has or claims an interest in tbe controversy adverse to tbe plaintiff, or whose presence is necessary to a complete determination or settlement of tbe questions involved therein, and any person claiming title or right of possession to real estate may be made a party, as the case may require, to any such action. Revisal, sec. 410. When a complete determination of tbe matter cannot be bad without tbe presence of other parties, tbe court must cause them to be brought in. Revisal, sec. 414. Tbe power to make an adverse claimant a party to proceedings for tbe sale of land for assets, as tbis is in part, is expressly recognized. Revisal, sec. 76. It would be strange if it were not so under our wise and liberal system of procedure, which seeks to settle all controverted matters in one action and without circumlocution; and further, it is better for all parties concerned tbat it should be so, in an action of tbis kind, in order tbat a good title to tbe land may be sold, as it will secure a better price. Tbe order being valid, tbe issue, submitted without objection, both in form and substance necessarily placed tbe burden of proof upon Henry Holloman, who asserted bis title and ownership to a one-tbird interest in tbe property, and tbe judge ruled correctly in- tbis respect. Holloman virtually admitted tbat plaintiffs bad tbe other two-thirds interest, and tbe whole, if be is not their cotenant; and tbe real question *135was, whether they were entitled to the whole or to only two-thirds. Their proof tended to show and, at least, made out a prima, facie case that they were entitled to all of it. One test by which to determine where the burden of proof rests has been said to be, which party would be successful, in law, if no evidence or no more evidence were given. Amos v. Hughes, 1 M. and Bob., 464. This Court has once adopted the rule laid down by Taylor, for it says in Walker v. Carpenter, 144 N. C., at p. 676, quoting from Bailey’s Onus Probandi, p. 2: “In every mode of litigation an assertion of fact avails nothing without proof. Some party to it must commence by producing proof' to sustain his allegation. The first rule laid down in the books on evidence is to the effect that the issue must be proved by the party who states an affirmative, not by the party who states a negative. Of course, such affirmative must be one in substance and not merely in form. An eminent writer on the law of evidence says: ‘This rule of convenience, which in the- Eoman law is thus expressed, Ei incnmbit probatio, qui elicit, non qui negat, has been adopted in practice, not because it is impossible to prove a negative, but. because the negative does not admit of the direct and simple proof of which the affirmative is capable, and moreover, it is but reasonable and just that the party who relies upon the existence of a fact should be called upon to- prove his own case.’ ” See, also, Cox v. Lumber Co., 124 N. C., 78. Plaintiffs were owners of the property, according to the proof in the case, by reason of their continuous adverse possession for more than twenty years, unless Holloman was their cotenant. He alleged that he is the owner of one-third, and they denied it. It was, therefore, a claim by him to be let into possession of. his one-third, front which they had ousted him, and practically an action of ejectment for that purpose, plaintiffs denying that he ever had any interest in the land. Whitfield v. Boyd, 158 N. C., 451; Daniel v. Dixon, post, 137. In this case Hollo-man is substantially an intervenor, asserting his right to one-third of the' property, and has the affirmative of the issue as to the title. Redmond v. Ray, 123 N. C., 502; Maynard v. Insurance Co., 132 N. C., 711; Manufacturing Co. v. Tier- *136 ney, 133 N. C., 630. He asserts title to one-third as tenant in common, and tbe other parties deny bis right and plead sole seizin, (non tement msimul), and tbe case is thus brought within tbe principle of Huneycutt v. Brooks, 116 N. C., 788. Tbe burden, according to tbe facts and circumstances as they appear and in any view of them, was upon Holloman.

As the burden was upon Holloman, be failed to show any title. He relied on tbe will of R. D. S. Dixon, but as tbe evidence by which be offered to show bis interest, under tbe will,' was properly excluded, there was nothing left upon which bis-claim could stand. There was no sufficient identification of tbe land described in tbe will. Some of tbe evidence rejected did not have sufficient probative force to show what land it was. There was no evidence that Dixon owned tbe land.

Tbe undisputed evidence of plaintiffs shows that they are tbe owners of tbe land. If Holloman ever bad any interest as tenant in common with them, be lost it by their adverse possession for more than twenty years, be admitting that be did not make any claim to be let into possession of bis share, nor any demand for bis share of tbe rents and profits within said time. Dobbins, v. Dobbins, 141 N. C., 214,

It may be well to say before concluding, that tbe court bad a discretion to exclude leading questions, and we will not review tbe ruling for that reason.

■ We may safely place our decision upon tbe single ground that tbe answer of Holloman shows that tbe title of bis adversaries is not denied unless be is owner of one-tbird as tenant in common, and it further appears in tbe case that they have held possession of tbe premises adversely, and have been in tbe pernancy of tbe rents and profits for more than twenty years, title being out of the State, and be has taken no steps to recover possession of bis alleged share, or bis share of tbe rents and profits, within that time, although be bad visited them occasionally. If they kept him out of possession of bis share of tbe land and the rents, be was put to bis action, and if not prosecuted within tbe twenty years, tbe law raised a legal presumption of title in those having tbe possession and barred bis entry. Dobbins v. Dobbins, supra; *137 Bullin v. Hancock, 138 N. C., 198; Whitaker v. Jenkins, ibid., 476. “Tbe possession of one tenant in common is, in law, tbe possession of all tbe tenants in -common. One may, however, disseize or oust tbe others, and from tbe time of such ouster tbe possession of him who keeps out tbe rest is not their possession, but is adverse to their, claims of possession. The sole silent occupation by one of tbe entire property, without an account to or claim by tbe others, is not in law an ouster, nor furnishes evidence from which an ouster can be inferred, unless it has been continued for that- length of time, which furnishes a legal presumption' of the facts necessary to uphold an exclusive possession.” If there were any technical errors in the rulings upon the evidence, the facts so plainly appear, and the legal inference thereupon is so well settled by the cases, that a reversal, if there was am error in the respects indicated, would be vain and useless. The Court would again reach the same result. We, therefore, sustain the judgment.

No error.