delivered the opinion of the Court. The Court are strongly inclined to the opinion, that the deed of Samuel Rickard to his two sons, Theophilus and Lazarus, in 1754, by which he gave the estate, including the premises, to them, to hold to them, their heirs and assigns forever, in equal halves, vested in them an estate in common, and not in joint tenancy.
But upon the other point the Court are of opinion, that the petitioners are not entitled to partition as prayed for.
It is in general true, that the seisin and possession of one tenant in common, is to be taken as the seisin and possession of his co-tenant, and the occupation of one will be deemed to be in conformity to his right and title as tenant in common, and not adverse, and consequently that lapse of time will not bar the co-tenant. But this rule is subject to some qualification, and it has long been held, that there may be an actual ouster of one tenant in common, by another, that upon such actual ouster the possession becomes adverse, and if continued for a sufficient length of time the right of the co-tenant out of possession may be barred. It is also now well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster. Doe v. Prosser, Cowp. 217. And in the same case Mr Justice Jlshhurst stated, in giving his opinion, that after such a lapse of time *254(it was there thirty-six years) almost any thing might be presumed in support of an exclusive possession, even a conveyance.
These principles apply strongly to the present case. It does not appear that any person claiming under Lazarus Rickard, who died in 1756, ever entered, or had possession, or asserted any claim of ownership, until within a few years, since this controversy arose, and during all that time Theophilus and those claiming under him, have had possession, and, so far as facts appear, this has been an exclusive possession. It is true, that if they had been in as tenants in common, eo nomine, their possession would have been consistent with their own title, and not inconsistent with that of the co-tenant. But this is the very question to be considered, whether they have been in as tenants in common, and that fact cannot be assumed to aid the title. I say there is no evidence of any claim by any heir of Lazarus ; and the Court think that the occupation of another portion of the hundred acres in severalty, by Samuel, the brother of Lazarus, without any thing to show the title or claim of title under which he held it, is not to be deemed as any evidence of a claim to hold as tenant in common, as heir of Lazarus.
But we think it does not stand upon the mere negative evidence, the want of proof of any possession on the part of the heirs of Lazarus. This will best be illustrated by taking the case backward from the present respondent, to the death of Lazarus, in 1756, instead of tracing it down. The present respondent, it is found by the case, had the possession, (and no other person being in with him, this was an exclusive possession,) till within a few years, since this controversy arose, by cutting wood over almost the whole of the lot in question. His possession goes back to the year 1785, a period over forty years. But he claimed under a devise from Jonathan, his brother, by which the testator devised the residue of his real and personal estate. Under this claim the respondent entered on the premises, affording evidence that Jonathan died seised and in possession ; and if the devisee’s possession thus taken was exclusive, it leads to an inference that the devisor’s was also. Jonathan, in like manner, took with his brothers and *255sisters, liy descent from his father Theophilus, and had the whole settled on him, pursuant to the statute, he paying his brothers and sisters the value of their shares. The same remark applies to his seisin and possession ; it is to be presumed, in the absence of all proof, that he took the same seisin and possession that his father had. It is Very probable, as the terms of the deed are even now considered sufficiently doubtful to admit of an argument, and as joint tenancies were perhaps more in favor in that period of our province history, than afterwards, that Theophilus claimed the whole by survivorship, and that Lazarus leaving none but collateral heirs, they acquiesced, so that Theophilus entered and held, claiming title to the whole, till it descended to his heirs, at his decease.
On the whole, we are of opinion that there is abundant evidence from which a jury would and ought to presume, that the heirs of Lazarus were actually ousted by Theophilus more than sixty years ago, and that those heirs, if they ever had title, and if they have not barred themselves by release or otherwise, have been long since barred by the statute of limitations.
Petitioners take nothing fyc.