#### DEN ex dem. GEO. BLACK, et al. vs. ELIZABETH LINDSAY.

Though tlic possession of one tenant in common is, in law, the possession of all, yet if one have sole possession for twenty years, without any acknowledgment on his part of title in his co-tenants, and without any demand or claim on their parts to rent, profits or possession, they being under no disability; the law raises a presumption that such sole possession is rightful, and will protect it.

Therefore, where under such circumstances, the tenants who had been out of possession brought ejectment, it was held, that their entry was tolled, and they could not recover. (The cases of Thomas fy wife v. Garvan, 4 Dev, 223, and Cloud v. Webb, ibid 290, cited and approved.)

This was an action of ejectment, tried before his Honor Judge Dick, at the Special Term of Buncombe Superior Court of Law, in June 1853. Upon the trial, it appeared in evidence that the land described in the plaintiff’s declaration was in the year 180U in the possession of one Thomas, who continued his possession until the year 1805, when one John Duncan entered, and continued in possession thereof, claiming the premises as his own until his death in 1809, and leaving a will in which he devised the same in fee to Jane Duncan, his wife, who continued to occupy and live upon the land, claiming it as her own, from the death of her said husband until her death in 1826 or 1827. The lessors of the plaintiff', Mrs. Black and Mrs. Addington, and the defendant, are the children and heirs at law of the said J ohn and Jane Duncan ; and soon after the death of the former the defendant, by and with the consent of her mother entered on the land, and was residing thereon at the time of bringing this ejectment. There was no evidence that the defendant recognized any person as landlord of the said premises, after the death of her mother.

Upon this state of facts the defendant’s counsel insisted that the plaintiff’s lessors could not recover ; but his Honor instructed the jury, that if the defendant entered into the possession of the land during the life of her mother by her permssion, and as her tenant, and continued thereon as such until her death in 1826 or 1827, and without abandoning the same still continued thereon until this ejectment was brought, her possession, until an actual or presumed ouster of her co-tenants, would enure to the benefit of all of the heirs at law of her mother, and there being more than *468thirty years continued possession of the land, the law presumed a grant to the heirs at law of Jane Duncan. And his Honor further charged the jury, that in the absence of any claim against the defendant for rent or demand by the lessors to be let into possession with her, or any actual ouster of them by the defendant, who, from the first supposed state of facts would be presumed to hold the possession for all the tenants in common, the law would presume an ouster of the lessors of plaintiff at the expiration of twenty years from the death of Mrs. Duncan, her mother, when her possession would become adverse to them — since which time there had not sufficient time elapsed to bar the recovery of the plaintiff’s lessors.

Under which instructions the jury found for the lessors of the plaintiff, and judgment having been rendered on the verdict, the defendant appealed to the Supreme Court.

J. W. and N. W. Woodfin, for the defendant.

J. Baxter, contra.

Nash, C. J.

The possession of one tenant in common is, in law, the possession of all his co-tenants, because they claim by one common right. When, however, that possession has been continued for a great number of years, without any claim from another who has a right, and is under no disability to assert it, it will be considered evidence of title to such sole possession ; and where it has so continued for twenty years, the law raises a presumption that it is rightful, and will protect it. This it will do, as well from public policy, to prevent stale demands, as to protect possessors from the loss of evidence from lapse of time. Thomas et ux. v. Garvan, 4 Dev. 223, and Cloud v. Webb, Ib. 290. Possession, then, for twenty years under the above circumstances, will amount to a disseisin or ouster of the co-tenant, and furnishes a legcd presumption of the fact necessary to uphold an exclusive possession: — as that the possession was adverse in its commencement, and tolls the entry of the tenant not in possession. It was said at the bar, that the law cannot give a right and take it away at the same moment. This objection is more specious than sound. A tenant in common out of possession, can, at any time, take *469possession with him in sole possession ; or, if the latter will not permit him so to do, and keeps him out, it will be a disseisin, and give a right of action. But if he suffer the sole possession to run on without entry or demand for twenty years, the law says to him — by your negligence you have lost your right of entry, without which you cannot support an action of ejectment. At any time, then, during the twenty years, the tenant out of possession had a right, and might have enforced it by an action. The title of the lessors of the plaintiff, and of the defendant united in Mrs. Jane Duncan, their mother, who died in 1826 or 1827. Before that time, the defendant went into the sole possession of the premises in question under her who was seised in fee, and continued such possession up to the time this action was brought, without any demand of payment or rent by the lessors of the plaintiff, or to be let into possession. The action was brought in October, 1849. The defendant’s sole possession, from the death of her mother, had then continued twenty-three years ■, the lessors of the plaintiff had lost their right of entry, and could not maintain their action ; and the jury ought to have been so instructed. The Act of 1715 has no application to the case.

Per CuniAM. Judgment reversed, and a venire de novo awarded.