Withrow v. . Biggerstaff
Supreme Court of North Carolina
Civil ActioN to recover possession of Land tried at August Special Term, 1879, of Rutherford Superior Court, before Buxton, J. The land claimed in the complaint consists of six adjoining tracts containing in all three hundred and eighty-two .and a half acres, and once belonged to James Withrow who 'by deed dated January 24th, 1863, conveyed an undivided one-half in the whole to his son Jason H. Withrow, and by deed dated February 19th, 1875, conveyed the remaining undivided…
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Civil ActioN to recover possession of Land tried at August Special Term, 1879, of Rutherford Superior Court, before Buxton, J. The land claimed in the complaint consists of six adjoining tracts containing in all three hundred and eighty-two .and a half acres, and once belonged to James Withrow who 'by deed dated January 24th, 1863, conveyed an undivided one-half in the whole to his son Jason H. Withrow, and by deed dated February 19th, 1875, conveyed the remaining undivided one-half interest to another son, Thomas J. With-row. Jason and Thomas by parol agreement ran a provisional line across…
1Opinion of the CourtAshe, J.
It is conceded in the argument of this case that the plaintiff and defendants are tenants in common of •the land in controversy. . The possession of one tenant in common is the possession of the other. And it is therefore held that one tenant in common cannot sue another unless there is an actual ouster. By an actual ouster is not meant the expulsion from or keeping out of the possession by real force, but it may be inferred from circumstances; which circumstances are matter of evidence to be left to the jury, as for instance, the entry of one tenant claiming the land as Ms own and continuing…
2Cases cited1 opinion
- Covington v. . StewartSupreme Court of North Carolina · 1877
3Cited by5 opinions
- Foster v. HackettSupreme Court of North Carolina · 1893
- Allen v. . SalingerSupreme Court of North Carolina · 1889
- Wetherington v. Williams.Supreme Court of North Carolina · 1904
- Foster v. . HackettSupreme Court of North Carolina · 1893
- Allen v. . SallingerSupreme Court of North Carolina · 1890