Lewis v. Lewis
| Decision Date | 06 October 1926 |
| Docket Number | (No. 152.) |
| Citation | 134 S.E. 485 |
| Court | North Carolina Supreme Court |
| Parties | LEWIS. v. LEWIS. |
Appeal from Superior Court, Pamlico County; Nunn, Judge.
Action by Frank M. Lewis against Richard A. Lewis. Judgment for plaintiff, and defendant appeals. No error.
Elijah Lewis, father of the plaintiff and the defendant, owned about 50 acres of land. Plaintiff alleges that in 1882 the said Elijah Lewis divided said land among his children, including the plaintiff and the defendant, and put the plaintiff in possession of the land in controversy, and the plaintiff, under said oral partition of land, has been in full possession and control of said land since 1882, and holds the same and has held the same since said date adversely. The defendant at the same time was put in possession of another parcel of said land. Elijah Lewis, father of the plaintiff and the defendant, left a last will and testament, making a different division of said land from the oral partition referred to, but this will was not probated until after a controversy arose between the parties, to wit, on the 20th day of November, 1922. The defendant denied the possession and ownership of the plaintiff. The question was submitted to a jury, and the jury found in favor of the plaintiff.
From judgment on the verdict the defendant appealed.
Z. V. Rawls, of Bayboro, for appellant.
F. C. Brinson, of Bayboro, and Ward & Ward, of New Bern, for appellee.
[1] The defendant objected to parol testimony of possession of the land in controversy by the plaintiff on the ground that it contradicted the will. It will be observed, however, that there was evidence tending to show that the parties were put in possession of their respective interests in said land by Elijah Lewis, the father, in 1882, and that the plaintiff therefore claims title under said oral partition and continuous adverse possession of said premises since said time.
"A parol partition [of land] is not void but merely voidable, * * * and * * * any evidence is admissible which tends to show either ratification of the partition or conduct from which the parties seeking to disregard it are held to be estopped from so doing." Collier v. Halifax Paper Corp., 172 N. C. 74, 89 S. E. 1006.
If a parol petition is made between tenants in common, and they severally take possession, each of his or her part, so allotted, and continue in the sole and exclusive possession since the allotment for a period of 20 years without the assertion of any...
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