{
  "id": 11274760,
  "name": "Den. ex dem. DUNCAN HARGROVE v. JOSIAH POWELL",
  "name_abbreviation": "Den. ex dem. Hargrove v. Powell",
  "decision_date": "1836-12",
  "docket_number": "",
  "first_page": "97",
  "last_page": "99",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Dev. & Bat. 97"
    },
    {
      "type": "official",
      "cite": "19 N.C. 97"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T18:19:36.541924+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Den. ex dem. DUNCAN HARGROVE v. JOSIAH POWELL."
    ],
    "opinions": [
      {
        "text": "Daniel, Judge,\nafter stating the case as above, proceeded: \u2014 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, as 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\u2019s 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 \u201c ouster,\u201d 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\u2019s Rep. 16. Jackson v. Stiles, 6 Cowen\u2019s Rep. 391. We think the judgment must be affirmed.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Daniel, Judge,"
      }
    ],
    "attorneys": [
      "No counsel appeared for the defendant in this court.",
      "W. II. Haywood, for the lessor of the plaintiff."
    ],
    "corrections": "",
    "head_matter": "Den. ex dem. DUNCAN HARGROVE v. JOSIAH POWELL.\nIn 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\u2019s 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.\nBy 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\u2019s title; but where he does dispute his companion\u2019s title, he shall be compelled to confess lease, entry and ouster, before he pleads.\nThis 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, 1833, 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, \u201c that the possession of one tenant in common was prima facie the possession of his co-tenant \u2014 and to rebut this presumption it was necessary to prove an actual ouster \u2014 not an act accompanied with real force, but circumstances from which such an ouster could be inferred; \u2014and 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\u2019s right, was a circumstance from which they might infer the previous adverse possession.\u201d 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. \u2014 Judgment for the plaintiff, and appeal by the defendant.\nNo counsel appeared for the defendant in this court.\nW. II. Haywood, for the lessor of the plaintiff."
  },
  "file_name": "0097-01",
  "first_page_order": 97,
  "last_page_order": 99
}