Covington v. Stewart

• Decision Date: 30 June 1877
• Citation: 77 N.C. 148
• Court: North Carolina Supreme Court
• Parties: E. P. COVINGTON and others v. ALEXANDER STEWART and wife and others.

77 N.C. 148

E. P. COVINGTON and others

v.ALEXANDER STEWART and wife and others.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION tried at Spring Term, 1877, of RICHMOND Superior Court, before McKoy, J.

E. P. Covington, the guardian of the heirs of John P. Covington, deceased, filed a petition in the nature of a special proceeding in the Probate Court of Richmond County, against Eliza J. Covington, widow of said deceased, praying for an order to sell the land (house and lot) in controversy for partition between the parties to said proceeding. The order was obtained, sale made and confirmed, and a deed executed to the purchaser. Subsequently said guardian and said purchaser filed an affidavit setting forth, among other things, that since said sale they had discovered that one undivided half of the land sold belonged to the heirs-at-law of W. L. Covington, deceased; and that the heirs of John P. Covington. deceased, owned only one half, notwithstanding the whole of it had been sold as belonging to them, and that the purchaser was mistaken and deceived in regard to the interest of the last named heirs, and asked that the heirs of W. L. Covington be made parties, and that defendants show cause why the purchase money shall not be refunded.

The defendants in answer to said affidavit denied the tenancy in common, and alleged the sole seizin of the land by the heirs of John P. Covington. The case was then transferred to the Superior Court to try the issue raised by the answer, which also involved the right of the heirs of John P. Covington to the whole of the purchase money.

The plaintiff, E. P. Covington, was one of the heirs of, and executor to the will of W. L. Covington, and also guardian of the heirs of John P. Covington

The heirs of W. L. Covington are the plaintiffs in this action, and the heirs of John P. Covington, the defendants.

There was much evidence in regard to the length of time the respective parties, and those under whom they claim, had possession of the property in controversy, the statement of which is not necessary to an understanding of the opinion.

Under the instructions of His Honor, the jury found that the defendants, as heirs-at-law of John P. Covington, were sole seized of the premises described in the pleadings. Judgment. Appeal by plaintiffs.

Mr. John D. Shaw, for plaintiffs .

Mr. Platt D. Walker, for defendants .

BYNUM, J.

The possession of one tenant in common is the possession in law of all; but if one have the sole posse??sion for twenty years without any acknowledgment on his part of title in his co-tenant, and without any demand or claim on the part of such co-tenant to rents, profits or possession, he being under no disability during the time, the law in such cases raises a presumption that such sole possession is rightful and will protect it. In such cases where the tenant who has been out of possession brings ejectment, it has been held that his entry is tolled and that he cannot recover. Black v. Lindsay, Busb. 467; Thomas v. Garvan, 4 Dev. 223; Cloud v. Webb, 4 Dev. 290.

This legal effect is given to the lapse of time from...