Lenoir v. Valley River Mining Co.

Citations

• 11 S.E. 516
• 106 N.C. 473

Syllabus

<p>Ejectment — Tenants in Common — Color of Title — Possession for Seven Years — Sale — Seisin—Action for an Undivided Interest.</p> <p>1. In an action to recover land the plaintiff claimed as owner in fee. The defendant claimed as tenant in common with plaintiff of an undivided third. Plaintiff’s evidence, sufficient to show ownership in fee in an undivided part of the land, tended also to show color of title and continuous possession of the whole land. Defendant also offered evidence tending to show color of title in an undivided third, and possession for more than seven years. This the Court refused to receive, and instructed the jury that defendant had failed to offer any evidence of co-tenancy: Held to be error.</p> <p>2. The burden was upon the plaintiffs to show sole title in themselves, as alleged, and failing in this, the defendant had a right to remain in possession as tenant in common with them of the undivided one-third.</p> <p>3. The defendant was not bound to show title as alleged — tenancy in common.</p> <p>4. The action being adverse, and evidence introduced to show color of title in plaintiff, defendant was entitled to reply, and the exclusion of his evidence, which might have influenced the jury to decide for him, entitles him to a new trial.</p>