FROM BLADEN. The plaintiff then proved by one of the commissioners that the division was made as stated in the report; that the several dividing lines had not been run and marked; that after running as many lines as they thought necessary to enable them to make an accurate division, the commissioners went to the house of the mother of the tenants in common, where they found all of them together, one being an infant of eighteen years of age, and there the partition was made, all of the tenants acquiescing in it; and that immediately all of them took possession of the portions allotted to them, and had never questioned the validity of the partition until the trial of the present suit, which had originated solely upon a question as to the boundary of two of the parts in which the land, descended from their common ancestor, had been divided.
His Honor instructed the jury that the order of the County Court, and the report of the commissioners were not submitted to them, as a record concluding the parties, but as proof of a transaction which might become conclusive, according to the circumstances connected with it at the time, and the subsequent conduct of the (531) parties; that if this partition had been assented to by the tenants in common at the time it was made, and was afterwards acquiesced in, they were concluded by it; but without such assent and acquiescence, the partition was of no effect whatever.
A verdict was returned for the plaintiff, and the defendant appealed. This is not a petition under the act of 1787 (Rev., ch. 274), and so the judge instructed the jury. Independently of the other objections to it, it does not appear that the commissioners were sworn, nor did they make a return of their proceedings and appropriations under their hands and seals. Regularly a petition ought to have been filed, and those of the representatives who were not petitioners ought to have had notice of the petition. This is required by the act of 1803 (Rev., ch. 636). Besides, one of the heirs at law was an infant, and was not represented.
The judge further instructed the jury, that although it was not a partition concluding the parties, yet it might become conclusive if the parties assented to it, and acquiesced under it until the bringing of the present suit.
This is not a suit brought in equity to complete a partition which the parties had agreed to and acquiesced under for a length of time, and to give to each party a title in severalty to the portion of land, by that agreement allotted to him; but it is an action at law brought to recover that part of the land which the plaintiffs say was allotted to them by the partition set forth in the case. If the partition is not valid under the act of Assembly, is it valid as a partition made by consent of the tenants in common?
It is said that partition at common law might be made by tenants in common parol, with a feoffment, or any written instrument (532) evidencing the partition. That may be admitted, but it cannot be admitted that it could not be done by parol without livery ofseisin, because tenants in common have several freeholds, and when one conveys to the other without deed at common law, it was necessary that livery of seisin should be made. In the present case that is not pretended to have been done. And, indeed, it is questionable whether it would be valid if admitted to have been done, because the act of 1715 (Rev., ch. 7) seems to have pointed out the mode to observed in conveying lands, and the act of 1778 (Rev., ch. 133) adopts so much of the common law as was in use before that time. But on this part of the case I give no opinion.
But it is said that each tenant in common in this case has been long possessed of the part allotted to him under the partition, and has so long acquiesced in the possession of each of the other tenants in common. Admitting that to be the case, it is to be observed that they are all heirs of the same ancestor, and each has a right to the possession of the whole, and the possession of one cannot be considered as adverse to the possession of the others. (Co. Litt., 242; Lit., secs. 396, 397; 1 Salk., 142, 423.) Their title is the same, and their possession is the same under that title. *Page 345
The case states that the commissioners (not sworn, and unauthorized to act on that account) calculated and made the plot, as laid down in their report and in their survey, sent as part of the case in the black lines, but did not run or mark the dividing lines, or either of them. Laying their common title derived from their common ancestor out of the case, this partition on paper, made by strangers unauthorized to make it, would not be a color of title to any possession, however adverse.
PER CURIAM. No error.
Cited: McPherson v. Seguine, 14 N.C. 155; Medlin v. Steele, 75 N.C. 156;Rhea v. Craig, 141 N.C. 609.
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