Duckett v. Harrison, 19

• Decision Date: 27 February 1952
• Docket Number: No. 19,19
• Citation: 69 S.E.2d 176,235 N.C. 145
• Parties: DUCKETT, v. HARRISON et al.
• Court: North Carolina Supreme Court

Page 176

69 S.E.2d 176

235 N.C. 145

DUCKETT, v. HARRISON et al.

No. 19

Supreme Court of North Carolina.

Feb. 27, 1952

D. Emerson Scarborough, Yanceyville, for appellant R. L. Harrison.

Sharp & Robinson and P. W. Glidewell, Sr., all of Reidsville, for appellee.

No counel for the appellees, Dora Harrison and Lillie Harrison.

DENNY, Justice.

In order for tenants in common to perfect title to the respective shares of land allotted to them by parol, it is necessary for them to go into possession of their respective shares in accordance with the agreement and to hold possession thereof under known and visible boundaries, consisting of lines plainly marked on the ground at the time of the partition, and to continue in possession openly, notoriously and adversely for twenty years. Rhea v. Craig, 141 N.C. 602, 54 S.E. 408; Collier v. Paper Corp., 172 N.C. 74, 89 S.E. 1006; Lewis v. Lewis, 192 N.C. 267, 134 S.E. 486.

However, if prior to the expiration of the adverse possession for twenty years, the statute of frauds is invoked by one or more of the tenants in common, the parol partition may not be enforced. 'It is well settled that a parol partition of lands is a contract, within the purview of the statute of frauds, and is not binding.' Fort v. Allen, 110 N.C. 183, 14 S.E. 685; Medlin v. Steele, 75 N.C. 154.

In the case of Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507, 509, Justice Winbourne, in speaking for the Court, said: 'It is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his co-tenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster would be presumed', citing numerous authorities. See also Parham v. Henley, 224 N.C. 405, 30 S.E.2d 372; Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E.2d 899.

Moreover, adverse possession, even under color of title, will not ripen title as against a tenant in common under twenty years. Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440; Bradford v. Bank of Warsaw, 182 N.C. 225, 108 S.E. 750.

Furthermore, if it be conceded, as contended by the defendant, R. L. Harrison, that there was a parol division of the lands in controversy in 1934 and that Dora Harrison entered into possession of the premises allotted to her, collected rents therefrom, paid taxes thereon, this would not be sufficient to prevent the operation of the statute of frauds, since we do not recognize the doctrine of part performance in this jurisdiction, and twenty years have not elapsed since the defendant, R. L. Harrison, contends the property was divided. Albea v. Griffin, 22 N.C. 9; Allen v. Chambers, 39 N.C. 125; Barnes v. Teague, 54 N.C. 277; Rhea v. Craig, supra; Ballard v. Boyette, 171 N.C. 24, 86 S.E. 175; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331.

The case of Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270, upon which the appellant is relying, is not controlling on the facts presented on this appeal. There, David E. Thomas, Sr., prior to his death on 27 January, 1925, joined by his wife, Emma C. Thomas, executed fourteen deeds of gift whereby he attempted to convey to his several children...