#### Den. ex dem. DUNCAN HARGROVE v. JOSIAH POWELL.

In an action of ejectment by one tenant in common against another, proof of a demand to be let into possession by the lessor of the plaintiff subsequent to the demise laid in his declaration, and a refusal by the defendant, denying the plaintiff’s right, is evidence from which the jury may infer a previous ouster, or adverse possession, at the time of the demise laid in the declaration.

By entering into the general consent rule, a tenant in common admits the ouster of his companion. To avoid such admission, when there has been no actual ouster, he must apply to the court, for leave to enter into a special rule, requiring him to confess lease and entry at the trial, but not ouster also: and this special rule will always be granted, when the tenant does not dispute his co-tenant’s title; but where he does dispute his companion’s title, he shall be compelled to confess lease, entry and ouster, before he pleads.

This was an action of ejectment, in which the defendant entered into the common'rule, and plead not guilty. The cause was tried at Bladen, on the last Circuit, before his Honor Judge Saunders, when it appeared that the lessor of the plaintiff was entitled to be let into the possession of the land mentioned in the declaration, as a tenant in common with the defendant and others. In April, *981833, before the delivery of the declaration in ejectment, he had demanded to be let into possession, but the defendant refused him, denying his right, and saying that he, the defendant, held possession for his father-in-law. The lessor of the plaintiff then brought this action, and laid the demise in the declaration, on the first day of August, 1832, and the ouster on the day after, to wit, the 2nd of August, 1832. Upon this statement, the defendant contended, that there was no proof of an actual ouster at the time mentioned in the declaration. His Honor charged the jury, “ that the possession of one tenant in common was prima facie the possession of his co-tenant — and to rebut this presumption it was necessary to prove an actual ouster — not an act accompanied with real force, but circumstances from which such an ouster could be inferred; —and though the plaintiff must show this ouster or adverse possession by the defendant at the time of the demise laid in the declaration, yet the subsequent demand and denial of the plaintiff’s right, was a circumstance from which they might infer the previous adverse possession.” There was a verdict for the plaintiff, and a rule for a new trial was moved for upon the ground of misdirection in the charge. His Honor discharged the rule, saying, that even if the instruction were erroneous, as the defendant had entered into the general consent rule, he could not avail himself of the want of proof of an actual ouster, as a defence. — Judgment for the plaintiff, and appeal by the defendant.

No counsel appeared for the defendant in this court.

W. II. Haywood, for the lessor of the plaintiff.

Daniel, Judge,

after stating the case as above, proceeded: — We are of the opinion, that the judge was correct in refusing a new trial, on both points in the case. First, the demand of the plaintiff to be let into possession in April, 1833, and the refusal by the defendant, accompanied with the declaration, that he held the lands for his father-in-law, was a circumstance properly left to the jury, from which they might infer the previous adverse possession, or an actual ouster at the date of the demise, *99as stated in the declaration. Secondly, the general consent rule, will in all cases, be sufficient to prevent a nonsuit for want of a real lease, entry, and ouster, except when it is necessary that an actual entry should be made upon the land previously to the commencement of the suit; as in cases when fines with proclamations have been levied. Adams on Ejectment, 90, 236. When, therefore, an ejectment is brought by a joint tenant, parcener, or tenant in common, against his companion, (to support which, an actual ouster is necessary,) the defendant ought to apply to the court upon affidavit, for leave to enter into a special rule, requiring him to confess lease and entry at the trial; but not ouster also, unless an actual ouster of the plaintiff’s lessor by him, the defendant, should be proved; and this special rule will always be granted, unless it appear that the claimant has been actually obstructed in his occupation. He, (a tenant in common) shall not be compelled to confess “ ouster,” when he does not dispute the title: but when he does dispute it, he shall be compelled to confess lease, entry, and ouster, before he pleads. Oates ex dem. Wigfall v. Brydon, 3 Burr. 1897. Doe ex dem. Ginger v. Roe, 2 Taun. 397. Prindle v. Lytte, 4 Cowen’s Rep. 16. Jackson v. Stiles, 6 Cowen’s Rep. 391. We think the judgment must be affirmed.

Per Curiam. Judgment affirmed.