Conkey v. John L. Roper Lumber Co

• Citation: 36 S.E. 42,126 N.C. 499
• Court: United States State Supreme Court of North Carolina
• Decision Date: 15 May 1900
• Parties: CONKEY. v. JOHN L. ROPER LUMBER CO.

126 N.C. 499
36 S.E. 42

CONKEY.
v.
JOHN L. ROPER LUMBER CO.

Supreme Court of North Carolina.

May 15, 1900.

TENANTS IN COMMON—POSSESSION—ADVERSE POSSESSION—BURDEN OF PROOF— STATUTE OF LIMITATIONS.

1. Possession of premises by one of two tenants in common thereof, not having been adverse for 20 years, is deemed the possession of both tenants.

2. Under Code, § 143, providing that no action for the recovery of real property or the possession thereof shall be maintained unless plaintiff, or those under whom he claims, had been seised or possessed within 20 years next before action brought, and section 146, providing that the owner of the legal title shall be presumed to have had possession within the time required by law, and that the occupancy thereof by any other person will be deemed to have been in subordination to the legal title unless it appears that the premises have been possessed adversely for 20 years, the pleading by defendant in ejectment that plaintiff had not been in possession for 20 years does not throw on him the burden of showing that he has been in possession within 20 years, where he shows title, since the presumption created by section 146 can only be rebutted by proof on the part of defendant that he has been in adverse possession for 20 years.

[36 S.E. 43]

Appeal from superior court, Gates county; Starbuck, Judge.

Action by Helen" Conkey, as executrix, against the John L. Roper Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. L. Smith and Shepherd & Shepherd, for appellant.

W. M. Bond and Battle & Mordecai, for appellee.

MONTGOMERY, J. This action was before this court at February term, 1899, on appeal of the plaintiff, and is reported in 124 N. C. 42, 32 S. E. 389; the plaintiff at that time being Jane E. Roscoe. Since that time she has died, and in the court below Helen Conkey was made the present plaintiff, as sole devisee of all of the lands of Jane E. Roscoe. By leave of the court, when the case was called for trial the plaintiff was allowed to strike out of sections 3 and 4 of the complaint all the lands described therein, except the Hill tract and the Mills Riddick tract. It was agreed by both sides that the damages which the plaintiff might be entitled to recover should be assessed after the issue of title had been settled. There was no change in the pleadings on the part of the newly-made plaintiff, and she adopted those which had been filed by the original plaintiff. The claim of the plaintiff is...