Plaintiff has two assignments of error: First. The court erred in holding that defendant had offered evidence sufficient to establish good title to the property sold plaintiff. Plaintiff takes the position .that the .burden of establishing title was on the defendants. No matter what the law may have been prior to the adoption of the Code of Civil Procedure and our registration statutes (See 14 Am. Jur. 566 and cases cited' in note 8), it is now settled that when plaintiff alleges a breach of a covenant of seizin and the allegation is denied, the burden rests on plaintiff .to establish his cause of action. Eames v. Armstrong, 142 N.C. 506; Cherry v. Warehouse Co., 237 N.C. 362, 75 S.E. 2d 124; 21 C.J.S. 1000-1001.
Here defendants specifically denied plaintiff’s allegation of a breach of the covenant. The mere fact that defendants did not stop with a mere denial but alleged the manner in which they acquired -title was not sufficient to shift the burden of proof from plaintiff to defendants.
In this case it is immaterial where the burden of proof rested. There was plenary evidence to show defendants had physical possession of the properties described in the deed to them for more than seven years. It was possession claimed as a right by virtue of the deed to them. The evidence was ample to warrant the finding which the court, sitting as a jury made. Whether the court should have accepted the evidence as true or rejected -it as unworthy of belief was for the judge sitting as a jury: his determination of that question is conclusive.
Plaintiff’s second assignment of error is to the judgment itself. He contends the judgment is erroneous because based on a misconception *290of the law and not supported by the facts found. He says: Defendants trace their title to the deed made by Mclntire, commissioner; the defendants in the action in which Mclntire was appointed and directed to act were cotenants; some were not served; the decree authorizing a sale could not bind those not parties; nothing short of twenty years’ adverse possession is sufficient to ibar cotenants. To support his assertion he relies on Williams v. Robertson, 235 N.C. 478, 70 S.E. 2d 692; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E. 2d 899; Peel v. Calais, 224 N.C. 421, 31 S.E. 2d 440.
Plaintiff’s contention is without merit for these reasons: (1) We find nothing in .the record which tends to- establish the fact that defendants trace their title to the deed made by Mclntire as commissioner. Even if it -be conceded that defendants did trace title to the deed executed >by Mclntire, commissioner, the facts alleged in sec. 6 of the complaint do not show that defendants in the action brought by Morse, tax collector, against Dixie Land and Development Co. and others were tenants in common. The facts there alleged and admitted 'by the stipulation are that some of the defendants were not served with process and hence not bound by the decree. (2) If it be conceded that defendants 'in the action under which Mclntire as commissioner sold were in fact cotenants, it does not follow that those who trace their title to the deed executed by Mclntire as commissioner could not ripen their color into good title by seven years’ adverse possession. Where a sale is made pursuant to court order in a partition proceeding .and some of the cotenants are not parties, or there is an actual partition among those parties, the deed or the decree of partition is not the act of a cotenant, but is the act of a stranger, and seven yeans’ possession under the deed or decree confirming the partition suffices to ripen title. Johnson v. McLamb, 247 N.C. 534, 101 S.E. 2d 311; Trust Co. v. Parker, 235 N.C. 326, 69 S.E. 2d 841; Perry v. Bassenger, 219 N.C. 838, 15 S.E. 2d 365; Alexander v. Cedar Works, 177 N.C. 137, 98 S.E. 312; Lumber Co. v. Cedar Works, 165 N.C. 83, 80 S.E. 982.
The court correctly held that plaintiff was not entitled to recover. Of course the findings and conclusions which the ¡court made with respect to defendants’ title cannot bind those who are not parties to this action.
No error.