HOKE, J., dissenting; WALKER, J., concurring in the dissenting opinion. This was a petition for sale for partition of a small lot in Goldsboro, and the defendant bank pleaded sole seisin. The jury responded to the issue that the plaintiff was owner of an undivided three-fifths interest in the premises, and from the judgment thereon the defendant appealed. *Page 240 The plaintiff and defendant claim under a common source of title, and the court so charged the jury, to which there was no exception. The defendant admits in its brief that Needham Kennedy was in possession of the land at the time of his death, and mentions his heirs by name. The plaintiff contends that he has shown a better title to the three-fifths interest in the land from this common source. Mobley v. Griffin,104 N.C. 112. It is not denied that the defendant has a good title through the conveyances from the two daughters of their two-fifths interest in said lot.
The plaintiff put in evidence the deed to Needham Kennedy, dated 12 January, 1870, and registered in January, 1876, covering the property. It was in evidence that he died about 1905, leaving 5 children: Fannie Aldridge, Ida Darden, Bryant Kennedy, William Kennedy, and Levi Kennedy.
The plaintiff also put in evidence deeds to J. J. Ham from William Kennedy, Bryant Kennedy, and Levi Kennedy, each conveying their undivided interest in said lot, all of them dated 14 July, 1916, and registered in Wayne, 24 August, 1916, and a conveyance from J. J. Ham to plaintiff covering the grantors' rights as conveyed in the three above deeds, dated 17 and registered (227) 24 October, 1917. The plaintiff testified that the deeds covered the lot in question and that there is no evidence that Needham Kennedy left a will not that his widow is living.
The defendant offered in evidence a deed from Fannie Aldridge and husband to her sister Ida Darden, dated 12 March, 1910, registered 22 March, 1912; and also a deed from William Kennedy to Ida Darden, 24 January, 1910, registered 12 April, 1921; and a mortgage, 21 March, 1910, from Ida Darden to Matthew Aldridge, 21 March, 1910, and registered the same day, and a deed dated 10 May, 1912, from M. W. Aldridge, mortgagee, to A. J. Brown, registered 11 June, 1912, and a deed dated 27 March, 1915, from Daisy Brown and J. D. Brown and wife, dated 27 March, 1915, and registered 1 May, 1916, all purporting to convey the entire interest. Said J. G. Brown and Daisy Brown were the only children of A. J. Brown, who died in 1913. Daisy Brown testified that the defendant Bank of Warsaw had a mortgage on this property and she and her brother made a deed to the bank in settlement of their father's debts.
The court charged the jury that it was agreed and admitted that both parties, the plaintiff and defendant, derived their title from *Page 241 Needham Kennedy, who owned the land. The court also charged the jury, in part: "There has been something said about a parol division of the land between the 5 children of Needham Kennedy. There has been no evidence in the opinion of the court offered to show that there has been a legal division of the land and the partition deeds that have been offered were only registered here this week, but the deed from Ham to the plaintiff was registered soon after its execution. You will remember the date of the deed and the date of its registration. It is the first deed that goes on record that covers the title."
The defendant also set up as a further defense that the plaintiff bought in the title of the three heirs under whom he claims while acting as agent for the bank in attempting to sell the land and that discovering what he supposed to be a defect in the title, he took a conveyance of the interests of the three heirs under whom he now claims. On this point the court charged the jury: "If you find from the evidence that the plaintiff here bought this land from Ham and that Ham bought it from William, Bryant and Levi, and that at the time the plaintiff took his deed from Ham he was not the agent of the defendant Bank of Warsaw and was not acting for them, that they had repudiated the contract of purchase when the deed was made to him, and if you shall find that the deeds were made to Ham by these three parties and their wives and registered at the time the evidence tends to show that they were registered, the court charges you that the plaintiff would be entitled to recover whatever interest in this land these three parties — William, Bryant and Levi — had and the court charges you that there being only 5 children they own three-fifths of the land. The court charges (228) you that if he was the agent of the Bank of Warsaw, for getting the title, then the title would go to the Bank of Warsaw, but if you find that he was not its agent at the time you will answer the issue two-fifths or three-fifths, whatever you find it to be." To both of the above instructions the defendant excepted. There was voluminous evidence as to the alleged agency on both sides, and the plaintiff testified to the rupture of the agency, and the severance of a connection between them prior to the time that Ham acquired the title under which he claims.
The defendant also excepted that the court erred in refusing to charge the jury as follows: "If you find from the evidence that during the year 1910 Ida Darden received a deed to the premises in fee simple from Matthew Aldridge; and that the same was recorded in March, 1912; and if you still further believe from the evidence that the said Ida Darden executed a mortgage on the premises to *Page 242 Matthew Aldridge, and that the said mortgage was duly recorded in March, 1910; and that in May, 1912, the said Aldridge foreclosed and sold said property to A. J. Brown by deed duly recorded in June, 1912, and that in March, 1915, his heirs conveyed said premises to the Bank of Warsaw by deed recorded in May, 1916; and if you further believe that the said Ida Darden, the said A. J. Brown, and said J. G. Brown and Daisy Brown and the said Bank of Warsaw possessed the said property, either themselves or by their agents, under said deeds and conveyances for a period of more than 7 years before the commencement of this action, and that the said possession was open, notorious, continuous, adverse, and under claim or right of color of title, then it would be your duty to answer the issue `No.'"
This prayer for instruction was properly refused. The defendant claims under a mortgage recorded in March, 1910, and a deed on foreclosure thereof to A. J. Brown recorded in June, 1912, and under the deed to the defendant recorded in May, 1916. These were at most merely color of title and there was not 7 years possession thereunder prior to the conveyance registered in 1916 of the true title under which the plaintiff claims the three-fifths interest. It has been held in all our cases from Cloud v. Webb, 14 N.C. 317, down to Gill v. Porter, 176 N.C. 451, that 20 years adverse possession is required to vest the title between tenants in common. See cases collected under C.S. 430. And the same is true where one tenant in common attempts to convey the whole estate, Alexander v. Cedar Works,177 N.C. 137.
The defendant put in evidence certain deeds of partition which were not registered until the trial. As to these deeds it is sufficient to quote from Buchanan v. Hedden, 169 N.C. 224: "The defendants did not contend that they had been in adverse possession (229) long enough to ripen their title without color and as the deed under which they claim title was not registered, and as both parties derived title from the same source, there was no color of title. Janney v. Robbins, 141 N.C. 406; Gore v. McPherson,161 N.C. 638; King v. McRackan, 168 N.C. 621." The headnote to that case sums up the proposition correctly thus: "An unregistered deed is not color of title when the parties to an action for the recovery of land are claiming under the same source."
The only request to charge was, as above set out, that the defendant claiming title under a possession, beginning with the mortgage in 1910 by one tenant in common for 7 years had acquired title to the entire tract which was refused.
The defendant made no exception to the charge that there was *Page 243 "No evidence offered to show that there has been a legal division of the land," and hence the assignment of error on that ground, if there were anything in it, is not before us. The entire defense was stated in the refused prayer, except the issue as to the plaintiff being estopped by his alleged agency from the defendant "to cure its defect in title," which the jury negatived.
The defendant's sole claim of title is a conveyance by one of the daughters of her "interest" for $75 to her sister in 1910, and a later mortgage by the other daughter alleged to cover the entire tract (though the deed was not set out), and an alleged possession thereunder for 7 years under a conveyance to the purchaser under that mortgage and under another mortgage by said purchaser to the defendant bank, and the release by the mortgagor to said bank, and collection of rents thereunder as a substitute for actual possession. This was certainly not good under our uniform decisions requiring not less than 20 years possession under a registered deed from one tenant in common (or his grantee) as against the conveyance of the title by the other three tenants in common of their three-fifths to the plaintiff registered in 1916.
The tract in question is a lot in "Negro Town," a suburb of Goldsboro, 42 feet by 210 feet, which was hardly capable of actual partition, and no adverse possession against the other three tenants in common (who were residing in another state) is shown by residence thereon of one tenant in common in 1910 and by a mortgage from her and payment of rent after foreclosure to the defendant bank.
A conveyance by one tenant in common, though duly registered and continuous, open, notorious, and adverse possession for less than 20 years under such registered deed would not bar the title of the other tenants. Certainly, therefore, the alleged oral conveyance by an oral partition (which the judge charged was not shown and the defendant did not except), and possession beginning with a mortgage by one tenant, even though it might cover the (230) whole tract, for 7 years cannot bar the other tenants and the plaintiff claiming under registered deed from them.
It would be an anomaly indeed if an alleged oral partition and the residence by one tenant in common on said lot and a chain of mortgages and the payment of rent to the defendant under a possession for 7 years — not even shown to be adverse — should give title to the defendant when nothing less than 20 years adverse possession would confer title, even under a registered deed, as against the other tenants and their grantee holding under a duly registered conveyance of their interest. *Page 244
Where there is an oral partition, 20 years possession, adverse and continuous, will bar, Rhea v. Craig, 141 N.C. 602, cited and approved inCollier v. Paper Corporation, 172 N.C. p. 74. This last case affirmed the ruling of Stacy, J., in the trial court below. In Gilchrist v. Middleton,107 N.C. p. 681, it is said: "The sole reception of the profits of land by one tenant in common is not an ouster, and will raise no presumption of an ouster against his fellows until he has enjoyed the exclusive profits of such rents for 20 years, and the grantee of a tenant in common, though he may hold possession under a deed purporting to convey the whole, stands, in this respect, precisely in the position of his grantor. Linker v. Benson,67 N.C. 150; Caldwell v. Neely, 81 N.C. 114; Page v. Branch, 97 N.C. 97." This has been cited since with approval in many cases, among them,Hilton v. Gordon, 177 N.C. 344.
Upon full consideration of all the exceptions, we find
No error.